[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
WILL NOAA'S NEW LEADERSHIP ADDRESS SERIOUS PROBLEMS IN FISHERY LAW
ENFORCEMENT?
=======================================================================
HEARING
before the
SUBCOMMITTEE ON DOMESTIC POLICY
of the
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
__________
MARCH 2, 2010
__________
Serial No. 111-135
__________
Printed for the use of the Committee on Oversight and Government Reform
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
index.html
http://www.oversight.house.gov
----------
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65-126 PDF WASHINGTON : 2011
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Washington, DC 20402-0001
COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
EDOLPHUS TOWNS, New York, Chairman
PAUL E. KANJORSKI, Pennsylvania DARRELL E. ISSA, California
CAROLYN B. MALONEY, New York DAN BURTON, Indiana
ELIJAH E. CUMMINGS, Maryland JOHN L. MICA, Florida
DENNIS J. KUCINICH, Ohio MARK E. SOUDER, Indiana
JOHN F. TIERNEY, Massachusetts JOHN J. DUNCAN, Jr., Tennessee
WM. LACY CLAY, Missouri MICHAEL R. TURNER, Ohio
DIANE E. WATSON, California LYNN A. WESTMORELAND, Georgia
STEPHEN F. LYNCH, Massachusetts PATRICK T. McHENRY, North Carolina
JIM COOPER, Tennessee BRIAN P. BILBRAY, California
GERALD E. CONNOLLY, Virginia JIM JORDAN, Ohio
MIKE QUIGLEY, Illinois JEFF FLAKE, Arizona
MARCY KAPTUR, Ohio JEFF FORTENBERRY, Nebraska
ELEANOR HOLMES NORTON, District of JASON CHAFFETZ, Utah
Columbia AARON SCHOCK, Illinois
PATRICK J. KENNEDY, Rhode Island BLAINE LUETKEMEYER, Missouri
DANNY K. DAVIS, Illinois ANH ``JOSEPH'' CAO, Louisiana
CHRIS VAN HOLLEN, Maryland
HENRY CUELLAR, Texas
PAUL W. HODES, New Hampshire
CHRISTOPHER S. MURPHY, Connecticut
PETER WELCH, Vermont
BILL FOSTER, Illinois
JACKIE SPEIER, California
STEVE DRIEHAUS, Ohio
JUDY CHU, California
Ron Stroman, Staff Director
Michael McCarthy, Deputy Staff Director
Carla Hultberg, Chief Clerk
Larry Brady, Minority Staff Director
Subcommittee on Domestic Policy
DENNIS J. KUCINICH, Ohio, Chairman
ELIJAH E. CUMMINGS, Maryland JIM JORDAN, Ohio
JOHN F. TIERNEY, Massachusetts MARK E. SOUDER, Indiana
DIANE E. WATSON, California DAN BURTON, Indiana
JIM COOPER, Tennessee MICHAEL R. TURNER, Ohio
PATRICK J. KENNEDY, Rhode Island JEFF FORTENBERRY, Nebraska
PETER WELCH, Vermont AARON SCHOCK, Illinois
BILL FOSTER, Illinois
MARCY KAPTUR, Ohio
Jaron R. Bourke, Staff Director
C O N T E N T S
----------
Page
Hearing held on March 2, 2010.................................... 1
Statement of:
Ouellette, Stephen, attorney; Richard Burgess, Gloucester-
based fisherman; and Jim Kendall, New Bedford Seafood
Consulting, former scallop fisherman, former New England
Fishery Council member..................................... 50
Burgess, Richard......................................... 75
Kendall, Jim............................................. 83
Ouellette, Stephen....................................... 50
Zinser, Todd, Inspector General, Department of Commerce,
Office of Inspector General; Jane Lubchenco, Ph.D., Under
Secretary of Commerce for Oceans and Atmosphere,
Administrator, National Oceanic and Atmospheric
Administration; and Dale Jones, Director, Office for Law
Enforcement, National Oceanic and Atmospheric
Administration Fisheries Service........................... 13
Jones, Dale.............................................. 32
Lubchenco, Jane.......................................... 25
Zinser, Todd............................................. 13
Letters, statements, etc., submitted for the record by:
Burgess, Richard, Gloucester-based fisherman, prepared
statement of............................................... 77
Kendall, Jim, New Bedford Seafood Consulting, former scallop
fisherman, former New England Fishery Council member,
prepared statement of...................................... 85
Kucinich, Hon. Dennis J., a Representative in Congress from
the State of Ohio, prepared statement of................... 4
Lubchenco, Jane, Ph.D., Under Secretary of Commerce for
Oceans and Atmosphere, Administrator, National Oceanic and
Atmospheric Administration, prepared statement of.......... 27
Ouellette, Stephen, attorney, prepared statement of.......... 53
Zinser, Todd, Inspector General, Department of Commerce,
Office of Inspector General, prepared statement of......... 16
WILL NOAA'S NEW LEADERSHIP ADDRESS SERIOUS PROBLEMS IN FISHERY LAW
ENFORCEMENT?
----------
TUESDAY, MARCH 2, 2010
House of Representatives,
Subcommittee on Domestic Policy,
Committee on Oversight and Government Reform,
Gloucester, MA.
The subcommittee met, pursuant to notice, at 11:20 a.m., at
the Kyrouz Auditorium, Gloucester City Hall, 9 Dale Avenue,
Gloucester, MA, Hon. Dennis J. Kucinich (chairman of the
subcommittee) presiding.
Present: Representatives Kucinich and Tierney.
Also present: Representative Frank.
Staff present: Jaron R. Bourke, staff director.
Ms. Kirk. Good morning. I would like to ask everyone to
take their seats, please. Thank you.
Mr. Chairman, Congressman Tierney, Congressman Frank, all
of our guests here from Washington, I want to thank you and
welcome you to the city of Gloucester.
Thank you for convening and participating in this important
hearing. I also want to recognize our state senator who is
here, Bruce Tarr, and our state representative, Ann-Margaret
Ferrante. We also have representatives here from Senator
Kerry's office and Senator Scott Brown's office, as well. And a
special thank you and welcome to former Mayor John Bell, who is
with us, as well.
I wanted to sort of give you a sense of where you are, and
you are in Gloucester, which is America's oldest fishing port
in the Nation. For 400 years, we have supplied a hungry nation
with fresh, wholesome fish. Gloucester is the No. 1 ground fish
port in New England, and we are 10th in the Nation in fish
landings. In addition, we are the port infrastructure for the
vast majority for the Gulf of Maine.
Before you leave here today, I would ask you to just
venture up to our third floor to observe and remember the 5,000
names of Gloucester fisherman who have gone down to the sea in
ships. Their names are listed on the walls of our city hall and
are in our memory.
I especially want to thank Congressman Tierney. Gloucester
is resilient and it is through your efforts and the efforts of
so many others that Gloucester will continue to fish for
another 400 years.
Thank you.
[Applause.]
Mr. Tierney. Thank you.
Mr. Kucinich. Domestic Policy Subcommittee of the House
Oversight and Government Reform Committee will now come to
order.
I'm Congressman Dennis Kucinich, chairman of the
subcommittee, and I'm here with Congressman Tierney and
Congressman Frank.
Congressman Tierney asked me a few weeks ago if I would
come to Gloucester and I'm happy to be here. I have had a deep
and abiding interest in New England and, of course, coming from
Cleveland, where we have an active fishing industry in Lake
Erie, I understand the importance of this industry to your
state and to the Nation.
The purpose of this field hearing is to examine problems in
the National Oceanic and Atmospheric Administration's Office
for Law Enforcement identified by the Department of Commerce
Office of the Inspector General and to hear NOAA's agency
response to those findings.
Now, without objection, the Chair and other Members will
have 2 minutes to make opening statements followed by opening
statements not to exceed 2 minutes by any other Member that may
join us, and without objection Members and witnesses will have
5 legislative days to submit a written statement or extraneous
materials for the record.
Today's field hearing of the Domestic Policy Subcommittee
of the House Oversight and Government Reform Committee concerns
serious and persistent problems in fishery law enforcement in
the Northeast Region.
Gloucester fishermen have for years felt that they were
being treated as criminals by the Office for Law Enforcement of
the National Marine Fisheries Service. They felt that the fines
they paid were unfairly harsh. And they felt a deep mistrust of
Federal law enforcement officers.
They were right. This January, at the request of the NOAA's
Administrator, Dr. Jane Lubchenco, responding to the request of
my colleague, Congressman Tierney and others, the Inspector
General for the Department of Commerce issued a scathing report
which found, among other things, NOAA management, concerned
primarily with managing a science-based agency, does not
exercise adequate leadership or oversight over the fishery law
enforcement elements of its mission.
By virtue of staffing and practices, Office of Law
Enforcement, that's the OLE, conducts itself as a criminal
investigation unit, which is at variance with the primary
statute it enforces and blurs the distinction between
regulatory enforcement matters and criminal investigations.
Compared to other Federal national resource law enforcement
agencies, OLE's emphasis on employing criminal investigative
techniques and personnel to regulatory law enforcement matters
is aberrant.
The Inspector General found that penalties assessed in the
Northeast region are comparatively harsh. The Inspector General
also discovered that NOAA management does not apply customary
internal controls and auditing practices to the Civil Asset
Forfeiture Fund. As a result, the Office of the Inspector
General could not draw any conclusions about how those funds
were managed, and it commissioned a forensic audit of the fund,
which will be published later in March.
Last, the Inspector General is continuing its investigation
with respect to allegations of abuses or arbitrary enforcement
practices in certain individual cases.
Dr. Lubchenco responded to the IG's findings with an
extensive list of immediate and longer term actions. Later this
month the recently appointed general counsel for NOAA will
issue her plan for comprehensive reform at the troubled agency.
Clearly, profound changes will have to be made to correct
the problems identified by the Inspector General. Those
problems originated with OLE and NOAA top management. They have
been festering a long time. New top management at NOAA offers a
chance at reform, and we felt we had to hear from Dr. Lubchenco
herself about the direction she's charting.
We also felt it was important that the chief of the Office
of Law Enforcement testify and answer questions about his
leadership. Judging by the comments that we have seen from
fishermen and OLE employees alike, Mr. Jones has much
explaining to do and bears much of the responsibility for the
problems at OLE identified by the Inspector General.
I also want to note that today's hearing and this
subcommittee's engagement in this issue is due to the advocacy
of Congressman Tierney, and I thank him for his advocacy and
also for the urgency that he expressed in bringing this matter
forward.
At this time, the Chair will recognize Mr. Tierney for his
opening statement.
[The prepared statement of Hon. Dennis J. Kucinich
follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Tierney. Thank you very much, Mr. Chairman, and I want
to thank the mayor particularly for her opening remarks in
welcoming us here, as well as the other elected leadership that
are here, Senator Tarr, Representative Ferrante, former Mayor
John Bell, and so much of the leadership of the fishing
community and the business and citizenry of this area, this
community, who thinks this is a very serious matter.
I'm particularly pleased to be joined by my colleague,
Barney Frank, who has been a leader on this issue for many,
many years, and I want to thank the chairman for holding the
hearing and holding what I believe is the first congressional
hearing on the issues raised in the Inspector General's report,
which is entitled Review of NOAA Fisheries Enforcement Programs
and Operations. And I want to thank you for convening it in
Gloucester. I know it was at some inconvenience to you and
others; but as Mayor Kirk indicated in her opening remarks, and
as those in the audience know well, it's only appropriate that
the hearing take place right here in Gloucester which has been
renowned for the fishing community since its founding in 1623.
We are very proud of that.
Generations of local residents have earned a living and
provided for their families through their catches from the sea,
and last week we had the opportunity in Washington to meet with
a number of fishermen and their families who visited as part of
the United Fish Rally. I think that was an excellent gathering
of people that really focused on this issue.
During that meeting I had occasion to talk with a young
teenager who was accompanying his mother and he told me about
the kinds of fish his mom and dad were catching, the challenges
they were facing, and how he sometimes went out to sea with
them. He knew what he was talking about. He was knowledgeable
and he spoke with pride. But the little anecdote evidences
what's true in so many cases, that fishing is a family business
in this city and in the Northeast.
One of the reasons we advocated for this hearing to occur
here in Gloucester, Mr. Chairman, was so that you and the other
Washington-based agency officials could come to the city and
see and listen to what the fishing industry means to its
residents.
I'm happy that Administrator Lubchenco finally made the
opportunity this morning to meet with representative groups
from the Gloucester fishing community. I know it was an
inconvenience for her and I know it took some pressing to get
you to come here, Doctor, and the same with Mr. Jones, but we
think it's valuable that you be here and we are glad that you
showed up and took advantage of getting here a little early
this morning to speak directly to some of the folks.
Let me also say that this family business is a very big
deal. Of all the New England states, the commercial fishing
industry had one of the highest sales, income, and employment
impacts in Massachusetts according to data published by NOAA.
But the fishing community in Gloucester and elsewhere in
Massachusetts continues to confront frequent hurdles and
significant hardships. They have been increasingly burdened
with complex and seemingly unrealistic regulations limiting
their access and restricting their days at sea.
The Magnuson-Stevens Act should be amended to provide more
flexibility. We acknowledge Representative Frank Pallone's
legislation and many of us co-sponsored that.We acknowledge his
leadership, as well.
On top of this, my colleagues and I have been hearing now
from local fisherman about how they have been subjected to
unfair treatment, cited for seemingly arbitrary violations and
charged exorbitant fines. That's why we asked the Administrator
to investigate and that's why she asked the Inspector General
for a report.
The stories have been told from many years past and were
told in Washington at the rally and they were told this
morning, I'm sure, to the Administrator. The Inspector
General's report just confirms. It notes that there are
systemic nationwide issues with NOAA's law enforcement
programs, practices, and personnel.
Among other things, this report cited NOAA's Office of
General Counsel for Enforcement and Litigation. The data for
the dates between July 2004 and June 2009 showed that in the
Northeast region the initial fine assessments totaled nearly
$5.5 million. That's two and a half times greater than the
second highest region and five times or more than the other
four regions.
Additionally, the date shows that Northeast is the region
with the greatest percentage reduction from assessed-to-settled
fine amounts, approximately 5.35 million assessed to
approximately 1.6 million settled, which is about a 70 percent
reduction.
There is a lack of oversight and enforcement by NOAA. The
questions of fairness and consistency abound. The program
integrity and accountability are in question, and at the very
least an appearance of abuse of authority exists.
A further concern is that NOAA currently retains proceeds
from these excessive penalties. It is very troublesome that
there is inadequate auditing of this money, which is deposited
into the Asset Forfeiture Fund. By the Inspector General's
count, there was $8.4 million in this fund at the end of 2009.
We should question whether allowing the agency to keep
those collected penalties provides some sort of perverse
incentive for officials to levy excessive fines.
Today's hearing offers us the opportunity to hear from
three key senior officials: Dr. Lubchenco, the Administrator of
NOAA; Mr. Zinser, the Department of Commerce's Inspector
General; and Mr. Jones, the Director of NOAA's Office of Law
Enforcement.
Mr. Jones has been aware of these issues for some time.
Many of us can recall visiting with Mr. Hogarth and with him in
Washington, DC, in 2006. I remember his promise to visit and
consult with local fishermen, and I remember that he didn't do
so, and that the next thing we heard the auction was raided.
The hearing is also an opportunity to carefully scrutinize what
has been happening and to get a better understanding of the
conduct of certain NOAA personnel.
But this hearing is not solely intended to be a
retrospective or to exercise blame. It's not what the committee
is about. It's not what this fishing community is about at all.
The fishing community here wants to end any and all abuse of
authority and mistreatment. They want meaningful action and
real change with NOAA's enforcement and legal operations. They
want more reasonable, flexible, and transparent regulations and
rules.
The Inspector General noted clearly that this is not a
situation where fisherman reject all regulation. More than
anyone, they understand the need to preserve and conserve. So
as the Inspector General said, the numerous individuals with
whom they spoke supported regulation and enforcement provided
it is fair, equitable, and not onerous.
That's why this hearing is an opportunity to learn about
the immediate and long-term actions that Dr. Lubchenco proposed
in response to the report. It's also an opportunity to hear
from Mr. Zinser on whether such actions sufficiently address
the problems identified in his report. And if not, what other
reforms are necessary as well as the Inspector General's report
on what he will do with continuing the scrutiny of past
specific conduct and enforcement and reports of those
particulars.
From this hearing my colleagues and I hope to learn what,
if any, further congressional action is warranted to ensure
that our fishing community is treated fairly and with the
respect it deserves. I'm looking toward to the testimony of the
witnesses.
And again, Mr. Chairman, I thank you very much for joining
us in Gloucester and having this hearing. I yield back my time.
Mr. Kucinich. Thank you, Mr. Tierney.
The Chair recognizes Congressman Frank.
Mr. Frank. Mr. Chairman, I appreciate your letting me sit
as a member of this panel since I'm not a member of this
committee, although I used to be. But I used to be a lot of
things.
I wanted to say that the work of my colleague, Mr. Tierney,
in this particular action and in general has been congressional
representation at its best. And I'm also pleased that we are
here with state, local, and Federal cooperation of all elected
officials. Too often you get finger-pointing. And having the
mayor and having the state legislators and having the
Congressmen here is an example of a community coming together.
There is a fundamental problem here. It is not just the
specifics. It is an attitude that looks at fishing violations
as if they were crimes. Yes, there are occasional crimes. There
are a very, very small number of people who set out
deliberately to violate the law. The great majority of people
who are caught up in this net of enforcement are among the
hardest working people in this country. They are doing a very
important job for the economy. They are doing it in very
difficult circumstances with a great deal of complexity.
People who drive know that there are lines painted on the
road. They are not painted in the ocean. People who haven't
fished don't have a sense of the inherent uncertainty that is
out there. And for people who have been treated as punitively
as the fishermen have been treated is simply wrong.
Now, one of the problems, we are told, is that there is an
overload of criminal enforcement agents in the area and not
enough elsewhere. Now, I don't want to put anybody out of work,
so I have a solution here, take some of these people who have
been doing this tough law enforcement and send them to the
Securities and Exchange Commission. We have underenforced in
one area and overenforced in another.
[Applause.]
Mr. Frank. I want to address a workout. Part of the
government's responsibility--Mr. Tierney and I voted against
the extension of the Magnuson Act done by the lame duck
Congress in 2006. After the 2006 election, before control of
the Congress switched, the lame duck Congress passed that. It
was signed into law. We voted against it.
In particular, I have never been a fan of magic numbers and
the notion that there absolutely has to be a rebuilding to a
certain level in 10 years rather than in some cases 11 or 12.
It makes no public policy sense. That is truly voodoo
regulation to take a particular number and overfixate on it.
I want to say a word to my environmental friends. The
notion that the business of fishing has to be protected from
fishermen is wrong. They are working environmentalists. I do
not know many fishermen who hope to be the last people ever to
fish. They are people who believe in fishing as an economic
activity and as a culture. It's simply very important to the
area that I represent in Southeastern Massachusetts, New
Bedford, and elsewhere, as it is here. It isn't just the
fishermen who care. It's the whole community because it's the
economy and the culture.
The notion that fishermen would put themselves out of
business, put their children out of business, and end fisheries
is wrong. Yes, there needs to be rules, and we have the most
regulated activity, I believe, around. But there needs to be a
recognition that the fisherman want to be partners of the
regulations. The way it is from a law enforcement standpoint,
there aren't enough law enforcement people in the world to
impose on people who think it is unfair this kind of
restriction. So if we do not get a better job of eliciting a
belief on the part of the fishermen that this is fair, and that
this is reasonable, and it takes into account the complexities
they face, then we will be chasing ourselves with punitive
enforcement that in the end is less enforcement than we can get
in a cooperative area.
I appreciate the Administrator's being here. It
is our job in the Congress to change the Magnuson Act, to put
some flexibility in there, and we will be doing that, but we
also have to have a recognition that we are talking here about
putting rules into place that govern an industry that is full
of people who are law-abiding, who want to cooperate, and the
approach that has been taken, and I admire the work in getting
it done.
We now have irrefutable evidence that there has been
excessive, inappropriate hardship. That's got to stop; and at
the same time we will be amending the law, and I would hope
going forward we will get the genuine cooperative approach to
law enforcement that's in everybody's interest.
Thank you, Mr. Chairman.
[Applause.]
Mr. Kucinich. Thank you very much, Congressman Frank. As
Mr. Frank said, he is not a member of this committee and
without objection, his participation; and questioning and
statements are included.
Mr. Frank. Let me make clear, objections are only in order
from the three of us, not from everybody else.
Mr. Kucinich. I also want to say that in the interest of
trying to facilitate a hearing so we can get the testimony from
the witnesses, I would ask that members of the audience try to
keep the expressions of approval or disapproval to a minimum,
if you can. I would appreciate that so we could just move
forward here.
I want to, if there are no additional statements, I'm going
to start by introducing our witnesses.
Mr. Todd Zinser is the Inspector General of the Department
of Commerce's Office of the Inspector General where he is
responsible for promoting economy and efficiency in the
programs in the operation of the Department of Commerce. He has
served as Inspector General since December 26, 2007, after 24
years as a career civil servant beginning as an investigator
for the U.S. Department of Labor in 1983.
Dr. Jane Lubchenco is Under Secretary for Commerce for
Oceans and Atmosphere, Administrator at the National Oceanic
and Atmospheric Administration. She is the first woman and the
first marine ecologist to head NOAA. Prior to being appointed
as Administrator, she was on the faculty of Oregon State
University. She is a former president of the International
Council for Science, and was a Presidential appointee for two
terms on the National Science Board. And this is the board
which advises the president and Congress and oversees the
National Science Foundation.
Mr. Dale Jones has directed since 1999 the Office for Law
Enforcement of the National Oceanic and Atmospheric
Administration Fishery Service. In his capacity, Chief Jones
oversees five regional offices consisting of 100 special agents
and 35 uniformed enforcement officers, as well as 31 technical
and support staff.
It is the policy of the Committee on Oversight and
Government Reform to swear in all witnesses before they
testify.
I would ask that the witnesses rise. Raise your right
hands, please.
[Witnesses sworn.]
Mr. Kucinich. Thank you very much. Let the record reflect
that each of the witnesses answered in the affirmative.
I ask that each of the witnesses now give a brief summary
of your testimony and to try to keep this summary under 5
minutes in duration. Bear in mind your complete written
statement will be included in the hearing record. If you don't
have a prepared written statement, you are entitled to address
the committee for 5 minutes and you can just follow the lights
there. You probably understand how it works.
Mr. Zinser, you will be our first witness. We ask that you
proceed.
STATEMENTS OF TODD ZINSER, INSPECTOR GENERAL, DEPARTMENT OF
COMMERCE, OFFICE OF INSPECTOR GENERAL; JANE LUBCHENCO, PH.D.,
UNDER SECRETARY OF COMMERCE FOR OCEANS AND ATMOSPHERE,
ADMINISTRATOR, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION;
AND DALE JONES, DIRECTOR, OFFICE FOR LAW ENFORCEMENT, NATIONAL
OCEANIC AND ATMOSPHERIC ADMINISTRATION FISHERIES SERVICE
STATEMENT OF TODD ZINSER
Mr. Zinser. Thank you, Chairman Kucinich, Congressman
Tierney, Congressman Frank----
Mr. Kucinich. Can everyone hear Mr. Zinser?
Voice. Slightly.
Mr. Zinser. We appreciate the invitation to be here in
Gloucester today to discuss our recent report on the fisheries
enforcement programs and operations of NOAA. My testimony today
will briefly summarize our report.
We undertook our review at the request of Under Secretary
Lubchenco. The Under Secretary's request was in response to
congressional inquiries asking for a review of policies of
practices of the Office for Law Enforcement within NOAA's
National Marine Fishery Service and NOAA's Office of General
Counsel for Enforcement in Litigation.
The Under Secretary could have chosen to undertake this
review using an informal NOAA team, but she chose to ask for
our independent review. It was my view then and it is still my
view that the Under Secretary wants to know what the problems
are with her enforcement operations and wants to fix them.
Our review included speaking with over 225 individuals in
various parts of the country, including fishermen, boat
captains, industry association representatives, conservation
officials, fishery management counsel members, and current and
former member NOAA personnel. We reviewed enforcement records
and examined NOAA's management information systems. We reviewed
Department of Justice policy guidelines and analyzed comparable
Federal regulatory enforcement agencies.
Our report details our three principal findings. First,
NOAA senior leadership and headquarters elements need to
exercise substantially greater management and oversight of the
agency's regional enforcement operations to include setting
enforcement priorities.
Second, NOAA needs to strengthen policy guidance procedures
and internal controls in its enforcement operations to address
a common industry perception that its civil penalty assessment
process is arbitrary and unfair. We found the process used for
determining civil penalty assessments includes significant
discretion on the part of individual enforcement attorneys,
with minimal guidance on how to exercise that discretion. As
such, it is difficult to argue with the view that the process
is arbitrary and in need of reform.
Third, NOAA needs to reassess its enforcement work force
composition, which is presently 90 criminal investigators, to
determine if this criminal enforcement-oriented structure is
the most effective for accomplishing its primary regulatory
mission. Based on NOAA's own data, its own enforcement results
for the last 2\1/2\ years were about 98 percent noncriminal.
While we recognize NOAA's need to maintain a criminal
investigative capacity, its caseload reflects that its current
staffing is disproportionate to agency function and operational
needs. This is particularly so compared with other agencies
with similar mission profiles and enforcement responsibilities,
such as the EPA and Interior Fish and Wildlife Service. Those
agencies separate their regulatory and criminal enforcement
functions with inspectors who handle regulatory enforcement and
criminal investigations who handle criminal investigations.
Our report presents specific recommendations for NOAA to
strengthen its enforcement programs and operations. These
include, one, NOAA's leadership regularly addressing and
providing input or enforcement priorities and strategies with
regional management.
Two, instituting a robust ombudsman program to provide an
effective interface with the commercial fishing industry.
Three, determining whether NOAA has an appropriate balance
and alignment of uniformed enforcement officers and criminal
investigators based on mission need.
Four, ensuring that there is an operating procedures manual
for enforcement attorneys and that the operations manual for
its investigators is current and provides sufficient policy
guidance and procedures for its investigatory and criminal
enforcement activities.
Five, ensuring follow-through on the process improvement
initiatives outlined by general counsel for enforcement and
litigation in December.
Six, instituting a mechanism for higher-level review of
civil penalty assessment determinations.
And seven, developing and implementing reliable integrated
case management information system for its enforcement mission.
We note----
Voice. Can somebody do something about the mic?
Mr. Zinser. We note that the Under Secretary has directed a
series of----
Mr. Kucinich. The gentleman will suspend.
That's a good suggestion. Is there anything we can do about
this, Mayor? You always ask the mayor. Mayor, if you can see if
we can do something about the mic.
Thank you. The gentleman may proceed.
Ms. Kirk. If he puts it to the side rather than going right
on, if he puts it on side. It's the P sound. Try that.
Mr. Kucinich. We will see what we can do. Thank you. You
may continue.
Mr. Zinser. Thank you, Mr. Chairman.
We note that the Under Secretary has directed a series of
actions, some immediate and others in the near future, that are
responsive to our findings and recommendations. We have asked
for a specific response to our recommendations and will assess
NOAA's progress by reviewing and recording on the status of
these and other agency actions.
That concludes my summary, Mr. Chairman. I would be happy
to answer any questions you, Mr. Tierney, or Congressman Frank
may have.
[The prepared statement of Mr. Zinser follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Kucinich. I thank the gentleman.
Dr. Lubchenco, you may proceed.
STATEMENT OF JANE LUBCHENCO
Ms. Lubchenco. Thank you, Mr. Chairman, Congressman
Tierney, Congressman Frank. I would greatly appreciate the
opportunity to testify before you today on the recent Inspector
General report.
NOAA, fishermen, and the public share a common goal of
preserving and protecting the marine environment and our
fisheries for the long-term health of both our fishery
resources and fishing-dependent communities. Proper regulation
and enforcement are vital to this effort and to the economic
vitality of our coastal communities. For all of this to work,
commercial and recreational fishermen must know the rules and
thus believe that if they follow the rules, others will do so,
too. But these rules must be consistently and fairly enforced.
NOAA is committed to improving its enforcement program to
ensure that it is both effective and fair.
I just spent a few hours this morning meeting with
fishermen here in Gloucester. Doing so is part of my commitment
to have an open, productive dialog with them and to
understanding their perspectives, to hear their ideas about
solutions and to work with them as partners.
In fact, I met with fishermen on my first full day on the
job last March, almost a year ago, and heard, among other
things, their frustration with NOAA's law enforcement.
A couple of months later I heard concerns from Members of
Congress, including from Congressmen Tierney and Frank about
NOAA's enforcement program. And in response, I requested the
Department of Commerce's Inspector General conduct a review of
these programs.
I requested this review because I believe in the importance
of NOAA's law enforcement efforts and felt it was time to take
a fresh look at how well NOAA's enforcement efforts are
supporting our mission to rebuild fisheries and the associated
economic opportunity within coastal and fishing communities.
The IG report released on January 21 identifies a number of
very serious issues with NOAA's law enforcement program and
recommends several steps we should take to address the
deficiencies. I was frankly appalled to learn of the many
fundamental problems identified in the report. I take the
report very seriously and I'm committed to responding in a
comprehensive, thoughtful, and timely manner.
To respond to the IG report, I have instructed the new NOAA
General Counsel, Lois Schiffer, and the new National Marine
Fishery Service Assistant Administrator, Eric Schwaab, who is
with us here today, to address the IG's recommendations and
continue to work to improve our outreach and engagement with
the fishing community at large.
While we develop a comprehensive plan to address the
report's recommendations in the allotted 60-day timeframe, we
have already taken a number of actions in response to the IG
report. My written testimony is more thorough, but let me
briefly outline some of the changes that have already taken
place and talk about some of the longer term actions we are
planning.
In terms of immediate action, first, I have instituted a
freeze on the hiring of criminal investigations until an
internal work force analysis is done to address the appropriate
mix of criminal investigators and regulatory inspectors in the
enforcement office. This action would better position the
agency to address the report's observation that the Office of
Law Enforcement may not have the appropriate balance in its
work force.
Second, I have shifted oversight of the Asset Forfeiture
Fund from NOAA's National Marine Fishery Service to NOAA's
comptroller. This immediate step will begin to address the IG's
criticism that internal controls over this fund are lacking. We
are actively working with IG to conduct a forensic audit on
this fund and will further review this issue once we have the
results of that audit.
Third, I have asked the general counsel, and she has
committed to institute higher level reviews for penalties,
permit sanctions, and settlements to ensure consistency and
predictability. This addresses the report's observation that
NOAA lacks formal procedures for sufficiently documenting
penalty decision resulting in the appearance of arbitrary
decisionmaking.
Other actions I would like to highlight that fall into the
category of improved communication and enhanced oversight,
which are the major themes of the IG report, No. 1, we are
planning a number of actions to improve communications and
increase transparency. A top level management team is
developing detailed plans for a summit on law enforcement
practices to be held no later than June 30th this year. This
summit will help us formulate long-range policies for properly
and fairly executing the agency's enforcement action and
develop forward-thinking approaches to enforcement efforts.
We are also well on our way to implementing much needed
improvements in our management information systems. This effort
is intended to address current system inefficiencies and data
integrity issues. The improvements will enable NOAA to more
effectively use information to guide its decisionmaking and
increase transparency.
Two, the IG's report identified lack of oversight in
several aspects of our enforcement programs. To address this,
we are working on several initiatives including develop
standardized procedures for settlement enforcement priorities.
We are also strengthening the operating procedure for our
enforcement attorneys. These steps are intended to begin to
respond to the issues identified by the IG. NOAA will buildupon
these steps to respond to all of the IG's recommendation and to
improve our enforcement programs.
Our marine and costal resources are of immense value to the
Nation. Effective, fair, and transparent enforcement is
critical to ensuring the long-term sustainability of these
resources. I echo the sense of urgency for change and I commit
to serious, measurable reforms to address the IG's
recommendations and enhance our work with the fishing industry.
In conclusion, the problems identified in the IG report do
not originate on my watch, but now I own them and I intend to
fix them.
[The prepared statement of Ms. Lubchenco follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Kucinich. Thank you, Dr. Lubchenco.
The Chair recognizes Mr. Jones for 5 minutes.
STATEMENT OF DALE JONES
Mr. Jones. Good morning, Chair, Congressman Tierney,
Congressman Frank. Thank you for your invitation and
opportunity to testify before you today.
The NOAA Office of Law Enforcement is dedicated to ensuring
the professional and responsible enforcement of our nation's
fisheries and marine resource-related laws. We recognize that
in meeting those missions to facilitate commercial fishing and
the mandate to conserve stocks and ensure sustainability, it is
critical that we reconcile the conflicts that are inherent.
As you know, our biggest area of responsibility is the
enforcement of the regulations that are created to manage
domestic commercial fishing. Our role also involves the
enforcement of matters involving recreational fishing, the
protection of marine mammals, endangered species, and
sanctuaries, as well as matters pertaining to international
fisheries enforcement.
As the Director of the Office of Law Enforcement, my role
is to assure that we identify and document violations of the
laws and regulations enacted within these mission areas and to
refer information on violations documented to the appropriate
prosecutors for further action.
We also work collaboratively with others to enhance
compliance and outreach in education efforts. Our ongoing
challenge is to meld these extensive mission requirements into
an enforcement premise and approach that allows us to cover a
vast geographic jurisdiction with limited numbers of personnel.
We are, therefore, working closely and responsibly with Dr.
Lubchenco and NOAA leadership to determine the most effective
and appropriate actions to take in light of the Inspector
General's report. We will work within the scope of Dr.
Lubchenco's direction to ensure we are responsive to the report
and, if necessary, any required changes to our enforcement
approach.
Thank you.
Mr. Tierney. Mr. Chairman, I understand that we are going
to have several rounds of questioning and I think we all have
questions for each of these witness.
Mr. Kucinich. I'm going to recognize Mr. Tierney for the
first 5 minutes, and then I will recognize Mr. Frank, and then
I will go last in the first round. We will take as many rounds
as we need.
Mr. Tierney. Thank you.
Mr. Zinser, thank you for your report. We appreciate it,
and I think it's been helpful as we look at these issues. You
mentioned in your report to the Administrator that there were
expectations that your office would further investigate
individual offices, that you didn't feel it was possible for
you to do that simultaneously with your broader view of what
was going on nationally in law enforcement on that. You said
you would followup. So my question to you is: When can we
expect a report on that followup?
Mr. Zinser. Thank you, Mr. Tierney. Our followup efforts
are, we identified three followup efforts in our report. One
was to do the forensic review on the Asset Forfeiture Fund.
That is underway. And we do expect something back from the
audit team there probably within 30 or 45 days.
Mr. Tierney. I ask if you angle your mic like that so you
are not necessarily speaking right into it.
Mr. Zinser. OK.
Mr. Frank. Make sure you do not speak straightforwardly.
Mr. Zinser. So the Asset Forfeiture audit is underway and
we do expect some results from that within 30 to 45 days.
The other thing that we committed to was following up on
the actions that NOAA is taking. Based on my experience in the
Inspector General community, you can make all the
recommendations that you want, but if you don't follow through
and make sure that the agency follows through themselves,
nothing may happen. So we are committed to sticking with this
issue.
The third issue is to try to identify and get to the bottom
of some of the individual complaints that we heard as we went
around and spoke to members of the fishing community about the
way they have been treated, either by the law enforcement
agents or the attorneys themselves, and it really falls into
this category of how the NOAA officials exercise their
discretion. We've identified between 20 and 25 such cases. We
are in the process, and while it's difficult for me to pinpoint
a day when we are going to be completed, we are trying to get
done as soon as possible. I would say within the next 90 days.
Mr. Tierney. Thank you. You also talked in your report
about saying you might recommend or suggest consideration of
some of those cases' resolution through an ombudsman. Would you
expandon that concept a little bit.
Mr. Zinser. Yes, sir. It seemed to us that the complexities
of this area for regulation is more than what an Inspector
General could deal with, and there does in our view need to be
some place that is independent and objective that members of a
regulated community can go to with the type of grievances that
we heard. It's not--in some cases, it's how fairly the
regulations were interpreted. In some cases it's how fairly
authority is exercised, and there are ombudsman programs in the
Federal Government that deal with exactly those kinds of
issues, and we think it's worth NOAA looking at whether or not
that would be appropriate for this area.
Mr. Tierney. Dr. Lubchenco, is that something you are, in
fact, considering?
Ms. Lubchenco. Congressman, we are considering all of the
recommendations that were in the report.
Mr. Tierney. I just didn't happen to see any mention of
yours of that particular aspect in your written memo that went
out. But you are considering it?
Ms. Lubchenco. Everything that is in the report is on the
table as far as I'm concerned.
Mr. Tierney. Thank you.
Mr. Zinser, you found in your report that the process for
determining civil penalty assessment is, in your words,
characterized by significant discretion on the part of
individual enforcement attorneys. You note that there is, again
in your words, minimal guidance on how to exercise that
discretion. So in essence, if you put that in plain English, I
think what you are saying is that the system has been run and
individual enforcement attorneys decide on their own what
penalties should be and there seems to be no schedule or
guideline or whatever that they are obligated to follow and no
supervision or at least not adequate supervision for superiors
in setting amounts. Is that an accurate statement?
Mr. Zinser. Yes, sir, except that there is a penalty
schedule, but there is a great deal of flexibility within that
schedule in terms of, for example, how many violations a
fisherman is cited for and then for each of these violations
whether you are fined at the lower end of the schedule or at
the upper end of the schedule. And we couldn't find any kind of
operating procedures that would guide an attorney to try to
figure those types of issues, nor did we find any records in
the attorneys' files as to how they arrived at their final
assessments.
Mr. Tierney. So I think the reason you concluded that you
find it difficult to argue with those who view the process as
arbitrary and in need of reform is based on the sheer lack of
that structure or process for setting particular penalties for
specific violations. So isn't that problem exacerbated by the
fact that there is incredible complexity in the guidelines, in
the process, and all that?
Mr. Zinser. Yes, sir, I would agree with that.
Mr. Tierney. In your estimation, wouldn't it beg for some
review of the pending cases, at least in the Northeast, and
then we would maybe hold off on enforcement while that's being
done?
Mr. Zinser. I do think that it does require some review of
pending cases. What we did not find was widespread abuse or
information that abusive conduct was widespread. So in that
regard, I don't know that our report would support a nationwide
moratorium on enforcement actions, but I do think it warrants a
review of pending cases.
Mr. Tierney. My time is up. We will get back to that later.
Mr. Kucinich. The Chair recognizes Congressman Frank.
Mr. Frank. To followup, Mr. Zinser, I think it is important
that we have this review of pending cases with this
recognition. What of the cases already adjudicated where there
is a finding you made that there was a real unfairness--maybe I
can address this to Dr. Lubchenco as well--we are the Federal
Government. I think we should err on the side--well, not err,
but just be open about this. Dr. Lubchenco, what about a
procedure whereby egregious cases of abuse, they need not have
been widespread to have been very negative on the individual
who is the victim or individuals, can we set up a procedure
whereby there can be some review and a revisiting of that, and
in some cases perhaps an adjustment of the penalty? It's been
done in the past. We are not talking about the courts coming in
and ordering it. We are talking about us voluntarily, the
Federal Government saying, you know, we think we made a mistake
in this case. We were too hard on this or that individual, can
we get such a procedure?
Ms. Lubchenco. Congressman, I didn't see anything in the
Inspector General's report that would lead me to believe that
there's grounds for reopening old cases. I have asked my
general counsel to review the docket of current cases and
ensure that they are all appropriate to go ahead.
Many of the problems that were identified in the report--
well, the cases that have gone to an administrative law judge
have had an independent review by the judge of the merits of
the case and decided based on that. So in those circumstances
there has been an independent determination.
Mr. Frank. I understand. And I'm not talking about somebody
being able to do this as a matter of right. Again, we are the
Federal Government. You didn't see anything in the report that
suggest you look at old cases? Well, I did. I saw some examples
that were given that seemed to be unfair. Why--I will say also
administrate law judges, they aren't totally independent
judges.
When I first became the representative of a fishing area in
1993, we had serious problems with an inappropriately close
relationship between a prosecutor and individual law judges.
NOAA at the time agreed and altered that. You say you didn't
see anything in your report. What would be the harm in setting
up a procedure whereby extraordinary cases where there appears
to have been some unfairness, of taking another look at it?
Ms. Lubchenco. Congressman, I would seek the Inspector
General's counsel on that.
Mr. Frank. Mr. Zinser, you are up.
Mr. Zinser. I think the situations that you are referring
to are exactly those we have agreed to look at in our followup.
Mr. Frank. Well, you looked at them in your followup, but
you are in power to relitigate them?
Mr. Zinser. No, sir.
Mr. Frank. But you have identified some that you think
were--again, not huge amounts maybe--but you found some you
think you should followup. Then, Dr. Lubchenco, if they were to
followup and found to have been unfair, inappropriate, wouldn't
we not, as the Federal Government, want to reopen them?
Ms. Lubchenco. I think if those were the circumstances,
that would be appropriate.
Mr. Frank. Thank you.
Mr. Jones, you've got a tough job. I understand that. But
the report is obviously critical in some individual instances.
Do you think the report was accurate, fair? Do you think it was
unduly critical?
Mr. Jones. No, I don't think it was unduly critical. Again,
this was a report Dr. Lubchenco requested and Mr. Zinser
provided. We take it very seriously and we are going to take a
look----
Mr. Frank. You don't intend--I guess we want two sets of
things. One is some overall changes. You are going to be
looking at these particular cases and seeing what the subjects
were that the Inspector General talked about which do appear to
have been very unfair?
Mr. Jones. The question of the cases that he will be
looking into, obviously I'm very anxious to see what the
outcome of those will be as well because I feel very strongly
that it's important to look at these cases and to do a very
close analysis of what all the facts are in these cases.
Because a great deal has been made of what they may represent.
So I'm very anxious to find out.
Mr. Frank. I do think we have an obligation not to simply
stop mistakes going forward, but to undue them when they have
happened. I will finish up.
Dr. Lubchenco, you said these did not begin on your watch,
these were prior, and I appreciate your commitment to fixing
them. There's one other thing that has to be done. This is a
statement, not a comment. I just figured I would mention it.
Part of what we are told is that the problem with these
exceptions and all these loopholes, I think that is a
recognition of the fact that there is too much rigidity at the
basis. When there is a problem with the basic system, too much
pressure is then engendered for this exception and that
exemption, etc. And that's one reason why I think we need to
have flexibility in the basic statute. So instead of having to
do these case by case and issue by issue, we can have more
flexibility overall and that, I think, would reduce the
complexity. Reducing the complexity reduces the burden of
compliance both on the individual in the business and on law
enforcement.
Thank you, Mr. Chairman.
Mr. Kucinich. Thank you very much, Congressman Frank.
Now, Mr. Jones, the Inspector General's report says that
about 90 percent of your investigators are criminal
investigators. His report also says that given the structure of
the Magnuson-Stevens Act, that the office has a disproportional
number of criminal investigators. This raises a question about
your own philosophy. Do you think that people who are in
violation or could be in violation of regulations, where there
are essentially administrative penalties, is it your opinion
that they are criminals?
Mr. Jones. Absolutely not. And again, you raise the term
that this is a philosophy, and I have to take a very careful
look at what he's presented to us and----
Mr. Kucinich. No, what's your philosophy, not his
philosophy. Do you think these people are criminals?
Mr. Jones. No, I do not believe they are criminals.
Mr. Kucinich. Why do you have so many criminal
investigators? I don't understand that.
Mr. Jones. The reason that we have criminal investigators
in this position really goes back to the overall process in
terms of what's occurred over the 40 years the agency's been in
existence.
Mr. Kucinich. I'm not talking 40 years, Mr. Jones. I'm
talking about your experience, why do you have so many criminal
investigators? I don't understand.
Mr. Jones. The reason that we have criminal investigators
is because they present to us the widest skill set and the
deepest skill set that we have available to actually conduct
the business that we have to conduct on the vast geographic----
Mr. Kucinich. But the Inspector General says that according
to the OLE, violations of the act typically do not result in
criminal charges. Most violations, such as exceeding catch
limits, result in administrative penalties alone.
I raise this question because if you bring a mind-set to a
task that says, well, these are a bunch of criminals, you get
criminal investigators to help confirm that, you take a whole
different approach in enforcement. I just wanted to point that
out.
Now, Mr. Jones, isn't it true that in December you wrote a
director's note to the Office for Law Enforcement staff in
which you said, ``We really have nothing to fear coming as a
result of the Office of Inspector General review. We need not
ask permission to, nor apologize for, doing our job.''
Did you say that or did you write that?
Mr. Jones. Yes, I did.
Mr. Kucinich. Now that the IG report is out criticizing the
job that you have done and the NOAA Administrator has issued a
reform plan, I wonder if you still feel that you and your
leadership of the Office for Law Enforcement do not foresee any
need to make any significant changes?
Mr. Jones. The letter was directed to our entire employee
group and it was directed in a manner that was intended to
encourage people that were undergoing a great deal of morale
stress in terms of----
Mr. Kucinich. What do you think, though? What do you think?
Mr. Jones. At this point, as I stated earlier, we are going
to do everything to follow Dr. Lubchenco's lead to resolve the
issues.
Mr. Kucinich. Not ``we.'' You. What do you think? Not what
we think. What do you think?
Mr. Jones. As I stated, I personally am committed to
following through with the direction that I'll receive and to
making the appropriate changes and to go to the premise and the
philosophy, if you will, that this leadership wants us to go in
or directs us to go in. That's what I believe.
Mr. Kucinich. Thank you, Mr. Jones.
Now, questions have been raised about your management in
the Asset Forfeiture Fund. The IG has found that the Office for
Law Enforcement did not maintain customary internal controls
over the Asset Forfeiture Fund. And then they went ahead and
commissioned an audit by forensic accountants.
Are you as sure and are you sure that the accountants
wouldn't find any wrongdoing? Since you have custody of this
for years, are you pretty sure that the Asset Forfeiture Fund
was run on the up-and-up, no problems?
Mr. Jones. Yes, I'm very comfortable in that. The fund
expenditures are spent in the same manner with the same
protocols as are the other appropriated funds within NOAA. This
money goes into a NOAA account and we follow the protocols that
NOAA has in place to spend money.In fact, there are more
restrictions on the expenditure of fund moneys. As you well
know, the Magnuson Act specifies what that money could be spent
on.
Mr. Kucinich. Well, let me ask you, isn't it true that
you've taken the Asset Forfeiture Fund, you are charging,
rather, for international travel that you have taken?
Mr. Jones. My office has not much. There may be some out of
the Office of Law Enforcement.
Mr. Kucinich. Not your office, you.
Mr. Jones. Me, personally, I don't believe I've spent--I
have done international travel. Most of my travel----
Mr. Kucinich. Well, let me ask the Inspector General.
Do you have any evidence that Mr. Jones has taken any
international travel using Asset Forfeiture Fund moneys?
Mr. Zinser. Sir, the preliminary, some of the preliminary
results from the forensic review that we are doing does
indicate that there has been international travel charged to
that fund and I do believe that it shows it was travel charged
by Mr. Jones, yes.
Mr. Kucinich. I'm going to take that up in the second round
of questioning.
Mr. Tierney, it's your time to ask questions for a second
round.
Mr. Tierney. Thank you.
Mr. Jones, prior to your appointment as the chief of the
Office of Law Enforcement, what experience did you have with
regulating fisheries or enforcing fishery regulations?
Mr. Jones. None.
Mr. Tierney. Had you done any enforcement of civil
administrative violations versus criminal activity?
Mr. Jones. Nothing extensive, no. My background is
primarily in municipal law enforcement prior to my taking this
position.
Mr. Tierney. Sir, do you recall in 2006, September 2006,
former Mayor John Bell, Senator Bruce Tarr, Representative Ann-
Margaret Ferrante, Louie Linquata, Jackie O'Dell, George McCabe
from my office, and others came down to Washington to meet with
you and at that time it was, I believe, Mr. Hogarth to talk
about the improper tactics that were being complained of, the
fact there were enforcement fishery regulations that seemed to
be severely in question, derogatory language, imposition of
inappropriately high fees and penalties, do you remember that,
that visit?
Mr. Jones. I remember visiting, yes, I do.
Mr. Tierney. Do you remember promising at the end of that
visit that you would come to Gloucester and talk with
everybody? And I assume that you do.
Mr. Jones. I remember--I do not want to be argumentative,
but there were some misunderstandings about the followup on
that, and we did make an extensive number of attempts to follow
through with our commitment in that regard.
Mr. Tierney. Well, did you ever come directly after that or
before the auction was raided at the end of 2006?
Mr. Jones. No.
Mr. Tierney. So I guess to be fair to you, I think what you
are saying is you tried to get here and couldn't get here for
some reason?
Mr. Jones. Yeah, there was some--yes.
Mr. Tierney. What have you done or what did you do
following that visit in September 2006 to remedy any of the
problems that are raised?
Mr. Jones. I looked into the complaints that I was aware of
and to determine what the background of those complaints were
and to try to make some determinations as to whether there was
actually any improper conduct or was any improper conduct on
behalf of our employees.
Mr. Tierney. Could you tell me why you never established
more formal guidelines for use of the forfeiture funds?
Mr. Jones. The Magnuson Act has a direct set of specific
areas that it can be used for. We followed that. And second,
again, as I stated earlier, our use of the fund is done in the
same manner as will be used in other funds for--from throughout
NOAA.
Mr. Tierney. You are familiar with the Inspector General's
findings in his report that the Northeast area suffered fines
of $5\1/2\ million, which is two and a half times the amount
for the next highest region, and five times or more higher than
the other four regions. Given that, and given all the other
information in the Inspector General's report, and the
complaints you have heard since 2006, you didn't think that
some remedial action was necessary both with the fund and with
respect to responding to these complaints?
Mr. Jones. Let me just first state clearly that I do not
hold responsibility for the attorneys and for the setting and
establishment of funds. We investigate the cases and I pass
those, my office passes those to the Office of General Counsel.
But beyond that, to say did we follow through, did we look
at that, once again, the fund expenditures are done in
accordance with the same as any other NOAA account. So there's
checks and balances along the way for that and for looking at
how appropriated money is spent as well as fund money.
The actual fines that are levied and the levels of those,
we've taken a look at that and there are some numbers in there,
but again, that doesn't follow directly under my
responsibility, but I do not----
Mr. Tierney. I'm having a hard time, Mr. Jones, with when I
look at all the complaints that have gone back to you directly
and to NOAA from this community and others in the Northeast in
particular, but elsewhere in the country, as well, how is it
that you know all of those complaints, that you are familiar
with all those situations, you now know the Inspector General's
report and all of the grievances that he cites in there, how
can you put out a director's minute to your staff indicating
that you see nothing or perceive nothing will be wrong on that
basis? I think it shows that you are out of touch with what's
going on in your agency there.
Mr. Jones. Well, again, I have a great deal of respect for
the Inspector General and what they have put forward. I have a
great deal of confidence in our employees in what they did, and
I wanted to be sure and just trying to encourage them through
this report and where they would be at.
I have no doubt that there are, as--if you read the entire
memo, that we could have made mistakes, that there would be
things that we look at and maybe changes we have to make. But,
again, to say individual employees had anything to fear, that
was my point.
Mr. Tierney. You said that you had nothing to fear on that
basis and you also said you respect the fishing community, but
you seem to give short shrift to their allegations and their
complaints.
Let me just summarize here for a second. Since 1998, the
Inspector General has been reporting that the Office of Law
Enforcement has a lack of policy direction and lack of mission
focus. His report has recommended that NMFS develop specific
enforcement priorities and goals for the OLE, which hasn't been
done.
The OLE has a history of poor communication and mistrust,
particularly in the Northeast; there's been, at best, only
limited progress in improving transparency in the fishing
management process; that under your watch, there's been
continued and even exacerbated mistrust and lack of confidence
and a continued lack of communication; that under your watch
the civil penalty process continues to lack transparency and
appears to be arbitrary and unfair; that there continues to be
a failure to distinguish what is an appropriate penalty as
opposed to what is an excessive fine in order to deter future
violations and reflect the violations' harm for natural
resources,particularly with regard to paper errors that are
found in the face of complex rules and data issues.
Mr. Jones, why shouldn't Dr. Lubchenco take some remedial
action here, some personnel actions here, to either discipline
or fire you or somebody that's responsible for that continuing
situation?
Mr. Jones. Well, once again, I think--once again, I think
there is a lot more detail behind that and I knew that--you
know, again, I will reiterate that my office is not responsible
for setting the fines and penalties. However, I will say that
as we look at the Inspector General's report, he has said that
he would look at specific cases. To date those cases have yet
to be evaluated.
I have also had a commitment to look at individual cases
and follow through and hold people accountable for violations
and inappropriate conduct, and my track record will show that
as well, and I'm committed to follow through with what the
Inspector General has recommended and the direction that
leadership has and will give us, and I'm very capable and very
committed to doing that.
Mr. Kucinich. The gentleman's time has expired. We will
certainly have another round. We are going to Mr. Frank. You
may proceed, Congressman Frank.
Mr. Frank. Following up on that, Mr. Jones, you said that
you would take appropriate action when something was done
wrong. Could we get--has law enforcement officials--I'm sure
the majority of them are very hard working and decent. Law
enforcement is never an easy job. People don't like to be
stopped for doing things they shouldn't do, but there are
occasional excesses. It's important that we have good
enforcement but also be protected. Have people been disciplined
for the kind of abuses that the Inspector General talks about?
Mr. Jones. Yes, they have. We have investigated 15 or 20
per year. We are an agency----
Mr. Frank. Could we get, without naming names necessarily,
but just a list of the disciplinary actions that have been
taken because of abuses?
Mr. Jones. Again, I don't know whether it's appropriate
with regard to that.
Mr. Frank. What would be inappropriate about telling us the
number of people that you disciplined and why, even if you
leave the names aside? I'm not sure that's necessary, but I
don't understand why you couldn't give us a summary of
disciplinary action or a list of them.
Mr. Jones. I believe that we could probably do that. I
don't have it with me, of course.
Mr. Frank. No. Let me also ask the question: Were you
surprised by the Inspector General's report? Was it more
critical that you expected?
Mr. Jones. Yes, I was, actually.
Mr. Frank. All right. But that goes to Mr. Tierney's point.
You told me that you don't contest the Inspector General's
report and apparently things were worse than you realized. So
the question is going forward, what do you do to prevent
yourself from being surprised--again, if you were there--and
now you acknowledge things were worse in your area than you
thought they were, you have committed to looking at individual
cases. What kind of structural organizational changes do we
have? What do you plan to implement, what policies to prevent
these abuses and get you better informed so you are not
surprised by a subsequent report?
Mr. Jones. Well, we are going to conduct a work force
analysis that Dr. Lubchenco has directed us to conduct and we
will take a look at----
Mr. Frank. Workforce analysis means what?
Mr. Jones. I'm sorry. That means that we are taking a look
at the mix of the criminal investigators versus non-criminal--
--
Mr. Frank. What about individual investigators? Some of the
people apparently didn't think they should have done something,
is there a process for that?
Mr. Jones. There is a process for that in place and we
followup when we find out that there is----
Mr. Frank. Again, I say to you, Mr. Jones, what I said to
the bank regulators on Friday, we would ask them about
individual allegations that they were too harsh and banks
weren't able to lend because of the lack of lending activity is
a serious problem. The gentleman from Cleveland has looked into
that, as well.
You acknowledged a general problem, but every time we ask
you about a specific, you say things are doing OK. So there is
a disconnect there. It can't be that your procedures as you
have them were good if you then were surprised by an unpopular
or unfavorable report. So we need to know what changes are you
making that, A, correct these things, and B, get you in a
better position for them not to occur?
Mr. Jones. Well, again, we are going to be pulling
additional data and information on what has occurred, what
different cases are involved, and what processes, and we will
be scrutinizing those more closely.
Mr. Frank. You got some data. What do you do about it? Are
you planning any structural changes? Changing the mix is one
thing. But it does seem like there is some serious deficiencies
in the operation that were revealed by the report that you do
not contest. You said it was a fair report. You were surprised
by how negative it was. It's not enough to say, well, we are
just going to get more information.
Somebody, Dr. Lubchenco, and I understand you inherited
this, but somebody better be thinking seriously about more than
data analysis to prevent the reoccurrence of this situation.
Again, it's a very critical report that surprised the man in
charge. No one contested the report. So what do we do from
here?
Mr. Jones. Well, again, I can only reiterate to you that we
take it very seriously. We are going to follow the direction
that we receive and we will be looking at every aspect of what
we do and making determinations on how we can make certain that
it does not happen again.
Mr. Frank. I assume we will get some reports on that. I
think there is a certain amount of skepticism. Dr. Lubchenco, I
just would add again, I continue to be convinced that--let me
ask you, the fact that we have--people have said, the Inspector
General said there are a lot of exemptions, it's a very complex
thing to administer partly because of all the exemptions, etc.
Does that not suggest going back to the basic statute because
it's absolutely not ideal to have a situation where so many
exemptions, exceptions, etc., have to happen? Is there some way
the statute can reduce that?
Ms. Lubchenco. Congressman, I think that the rules are a
nightmare, frankly. They are very complex. It's difficult for
everyone to know exactly what the rules are. And I think it is
an area that is most appropriate to pay some attention to.
Mr. Frank. Thank you. Again, I would say we may disagree on
this, part of the problem if you start with a very basic, rigid
rule, then you generate a lot more exceptions. I think we put
all the flexibility in, the exceptions, etc.--I think you need
to go back to the statute. You can't correct an excessively
rigid statute by a whole lot of regulation. I think we have to
go back to the statute, as well.
Thank you, Mr. Chairman.
Mr. Kucinich. Thank you very much, Congressman Frank.
Now, Mr. Jones, the IG's report, in talking about the Asset
Forfeiture Fund, says that they were constraining your ability
to examine the use of the Asset Forfeiture Fund; that they are
not aware of the fund ever having been audited; that the
proceeds and accounting for the proceeds seem to have weak
internal controls and could not--and the IG could not readily
determine how NOAA utilized the funds.
Now, Mr. Jones, the IG stated evidence suggests that you
have charged the Asset Forfeiture Fund for international travel
that you, yourself, have taken. Isn't it true that some or all
of that travel was not case related since you don't work cases
as head of Office of Law Enforcement, Mr. Jones?
Mr. Jones. I would have to, again, first await the specific
findings to determine exactly what the accounting shows as to
whether I personally was on the fund or on appropriated moneys
that any expenses for my travel was charged to. I am not aware
of my travel expenses being charged to the Asset Forfeiture
Fund. I have taken international travel. I have conducted that
business on behalf of NOAA and strictly on behalf of NOAA only,
and so there are a number of different trips that I have taken
in the 10-years plus that I've been in this job, and it is
possible that some of those actual expenses were charged to the
Asset Forfeiture Fund.
Now, I will say right up front there is travel that occurs
within NOAA that is charged--there has been international
travel charged to the Asset Forfeiture Fund, and that is in
support of the effort to resolve issues involving illegal,
unreported fishing on the international scale, on what they
call MCS, Monitored Controlled Surveillance type, of work.
Mr. Kucinich. But from the information we have, your travel
is not case related?
Mr. Jones. Is not directly case related, but it is in
support of international investigation.
Mr. Kucinich. Thank you.
Now, didn't your office inform the Administrator of NOAA
just last month that international travel charged to the Asset
Forfeiture Fund was, ``the majority of all travel requirements
for personnel to accommodate case-related work supported
through the fund?'' Now wouldn't you have to admit that, at
least as part of your international travel is concerned, this
explanation that you gave the Administrator was not accurate?
Mr. Jones. It was not personal information, that's correct.
Those are general statements. Those are general statements----
Mr. Kucinich. It was partial information?
Mr. Jones. Those are general statements to try to give an
idea of what the fund expenditures were. We got a general
question, what types of things, so we gave examples. That list
is certainly not comprehensive. There is an extensive number of
things that would not be on that list.
Mr. Kucinich. I just want to make sure that we are clear
because you are under oath.
Mr. Jones. I understand.
Mr. Kucinich. Now, isn't it true that you, yourself, had no
fisheries experience or Federal law enforcement training before
you became chief of enforcement, chief of enforcement at NOAA?
Mr. Jones. That's correct.
Mr. Kucinich. Now, you placed a number of state police
officers in positions, in the top positions of the Office of
Law Enforcement. Isn't it true that none of those individuals
had fisheries law enforcement experience either?
Mr. Jones. I've hired a number of people in my 10 years and
some of them did have enforcement experience in the Federal
level.
Mr. Kucinich. Let's talk about Mr. Spurrier, Mr. Paterni,
and Mr. Robbins. Isn't it true that you waived the NOAA
requirement of Federal law enforcement training to give NOAA
jobs to each of those individuals?
Mr. Jones. Those individuals were hired in complete
compliance with the selection process within NOAA.
Mr. Kucinich. Did you waive the NOAA requirement for
Federal law enforcement training?
Mr. Jones. There was no waiver required. I did not make any
specific waiver. Those applications were vetted through the
human resources process of NOAA, and they were hired through
that process. Those individuals were on the certification that
I received.
Mr. Kucinich. Could you tell this subcommittee then how it
was that officers were hired who had none of the required
credentials or fisheries experience and they ended up taking
over a leadership position of a Federal resource law
enforcement agency? How did that happen? How did it happen?
Mr. Jones. They were among those well-qualified applicants
that we received at the time in the interview process that we
did in the selecting of them, and they were very well qualified
to fill the positions. Those qualifications were established
and vetted through the human resources process of NOAA with no
intervention on my part.
Mr. Kucinich. Yeah, I understand you have to have some
qualifications, but wouldn't you want someone that had fishery
experience?
Mr. Jones. That would be preferred if those individuals who
applied who were qualified in the management areas that we
needed would have had that fisheries experience. I selected the
best applicants for the positions.
Mr. Kucinich. Everyone you selected had fisheries
experience?
Mr. Jones. No, I'm not saying that. They----
Mr. Kucinich. I just want to establish that you are not
saying that they all had fisheries experience. Thank you.
Mr. Jones. Absolutely not. Several of them did not.
Mr. Kucinich. Thank you, Mr. Jones.
Mr. Tierney.
Mr. Tierney. Mr. Jones, just not even going back beyond
2006, but at least since 2006 when you personally became aware
of a number of complaints about the derogatory language, about
the attitude, about treating fishermen as criminals, about the
way warrants were being executed, sometimes searches without,
at least allegedly without, warrants and all of that, did you
ever order any particular investigation into any one of those
incidents?
Mr. Jones. Yes, I did. We investigated several of them that
we had specifics on.
Mr. Tierney. Did reports emanate from those investigations?
Mr. Jones. We have our OPR reports, our Office of
Professional Responsibility, which is essentially our internal
affairs.
Mr. Tierney. Will you share copies of those reports with
this committee?
Mr. Jones. If it's appropriate to do so.
Mr. Tierney. It's appropriate. It's very appropriate.
Mr. Kucinich. Let me state that your appearance here is
voluntary. We invited you under threat of subpoena. We also
have the ability to gain those documents without your
cooperation, but we always appreciate your cooperation.
Thank you. You may proceed.
Mr. Tierney. Dr. Lubchenco, why shouldn't Congress amend
the act and just have all the moneys collected on forfeiture,
asset forfeiture, go to the treasury and have NOAA just ask for
an appropriation every year? Why should we continue to allow
that to be the way it is now?
Ms. Lubchenco. Congressman, I understand there is an
appearance of perverse incentives operating here. I think it is
useful to note that the Magnuson Act specifies the types of
activities that are appropriate to be--the types of activities
that are appropriate, for which it is appropriate, to use the
Asset Forfeiture Fund. And I would note that those activities
and the fact that the funds go to NOAA have a parallel to very
similar situations in many other agencies and departments.
Mr. Tierney. But I'm not sure those agencies or departments
have the appearance of abuse the way that we have here. You
have the Northeast getting whacked with five times what other
regions are getting whacked on that. It does raise a real
question of perverse incentives. And I know it's prescribed how
you can use it, but it's nice if the money be used for those
prescribed purposes as opposed to struggle with Congress
getting an appropriation every year.
Again, given the circumstances of the Inspector General
report and the history here of those fines being so far out of
proportion to other areas of the country, why shouldn't we at
least--Members that come from this region say enough already.
We are just going to let that money go to the Treasury and you
have to go through appropriation every year and we'll get rid
of any appearance of impropriety.
Ms. Lubchenco. Congressman, I think that my preference
would be to ensure that we have the kinds of checks and
balances we need that the funds are being used as they were
intended. And that is exactly what we intend to----
Mr. Tierney. Excuse me for interrupting. But I'm not
concerned how the use of those funds is going. I think Mr.
Kucinich has covered that area. I'm concerned about the idea
that people have been getting whacked excessively to fund that
account. That's the problem here. I think--we care how the
money is being used and we would expect it would be used for
the proper purposes, but our concern here is that in the
Northeast we are getting disproportionately penalized, and on a
regular basis, and I'm anxious to see the reports that Mr.
Jones produces. I would like to have seen them sooner, some
report back on them, but this simply can't go on.
I don't know--I hope that you're listening in the past and
today, this morning, as well as here, and if you listen to the
witnesses later on today, you are going to see how serious that
is and why this area seems to be singled out. Why do we need
cases that are delayed until this is sorted out, whether or not
there is unfairness here, whether or not complexity is just
overwhelming?
While I'm on that subject, what allowance is made for
somebody that's been accused of a violation for the fact that
these regulations may be so complex and for the fact that
sometimes the data coming out of NOAA itself contributes to
this situation?
Ms. Lubchenco. My understanding is that the vast number of
violations are, in fact, settled without any penalty and they
are, in fact, the large number that are misunderstandings that
are--that have a written warning or verbal warning and that
it's only less than 2 percent of the incidents that actually go
to the more severe formal notice of violation.
So I think the focus of our discussions is really on that 2
percent, and that's a very important 2 percent, and part of my
intent is that not only do we know what the funds are being
used for, but we have better guidelines and procedures in place
so that the fines that might be issued are, in fact,
appropriate and not excessive.
Mr. Tierney. I hope and I invite you to stay to hear the
next panel. If you can't, I invite you to read their testimony.
I think added to what you heard this morning and otherwise, you
will see a number of instances where people get charged and
then it's very difficult for them to appeal or to challenge
because of the circumstances that have been going on. My time
is up.
Ms. Lubchenco. Could I respond just very quickly to that?
Mr. Tierney. Sure.
Ms. Lubchenco. Unfortunately, I'm not able to stay for the
second hearing. I have read their testimony. And I very much
look forward to hearing a report of the exchange and Q and A.
Mr. Kucinich. If I may, who is here from your office who
will take the notes back to you from the second panel?
Ms. Lubchenco. Thank you, Chairman. Mr. Eric Schwaab, who
is my Director of NOAA Fisheries, is here with us and intends
to stay.
Mr. Kucinich. Good. I just want to make sure if you are not
going to be here, someone is taking close notes. OK.
Ms. Lubchenco. I've charged two people with responding to
the IG report, my general counsel, and Mr. Schwaab, he's here
for this purpose.
Mr. Kucinich. Thank you, Dr. Lubchenco.
The Chair recognizes Congressman Frank for 5 minutes.
Mr. Frank. Just one question. I want to defer to my
colleague, Mr. Tierney.
Mr. Zinser, two questions, for how long has this situation
of disproportionately serious fines and discipline in the
Northeast gone on?
Mr. Zinser. The best we can tell, the relationship in the
Northeast between the enforcement arm of NOAA and the fishing
community probably goes back over 10 years.
Mr. Frank. Then, Dr. Lubchenco, Mr. Jones, particularly Mr.
Jones, you were here, for over 10 years this region has been
hit disproportionally. I have a very simple question, why? Mr.
Jones, can you tell me why? Have you looked into this, what the
reasons were for this discriminatory approach?
Mr. Jones. Well, again, I have been here 10 years and I----
Mr. Frank. You just thought that's the way it was?
Mr. Jones. I don't sort--again, I don't set the fines and
penalties.
Mr. Frank. No, Mr. Jones, I understand that, but it's not
just fines and penalties. Apparently for 10 years we have a
disproportionate negative impact on one region. Did nobody call
that to your attention? Has nobody looked into that? Now that
you have known this for some time, do you know why that's been
the case?
Mr. Jones. Well, there are some differences in the volume
of mandates and the amount of casework that goes on here to
some degree and whether the enforcement----
Mr. Frank. No, I'm not talking about proportionate. We are
talking about disproportionate case by case. It's not the total
volume. Apparently the findings you don't contest is there was
a pattern of discriminatory or much harsher enforcement here
than elsewhere taking everything else into account. Has no one
in your operation tried to figure out that was the case?
Mr. Jones. Well, once again, we will look at it on a case-
by-case basis, and if we get any reports whatsoever of any
malfeasance or inappropriate activity----
Mr. Frank. Mr. Jones, you said you accepted the Inspector
General's report. He reports a pattern of geographical
discrimination. You have that. I would say this to Dr.
Lubchenco, too, I would want to know why. Is it an accident? If
it was for a year, that's one thing. For over 10 years there's
been this pattern of geographical discrimination. Hasn't anyone
tried to figure out why that has occurred over and above the
individual situations?
Ms. Lubchenco. Congressman, I have asked for an analysis of
the penalties region by region so that I have a better
understanding of exactly what the contributing factors are.
Mr. Frank. OK. But the Inspector General, has found this
already. So you reject his data. So I would hope that it will
be simultaneously you would try to figure out why it happened.
Ms. Lubchenco. That's exactly what we are looking into, and
the patterns are fairly complicated. It's partially a function
of how many rules there are and how many fishermen there are in
the region. It's not necessarily the same from region to region
in terms of the complexities of the fishing operation.
Mr. Frank. I understand that. Mr. Zinser, do you have any
sense of why this occurred?
Mr. Zinser. Yes, sir. It was clear to us early on that the
enforcement of the rules were left to the regional enforcement
officials. There was no national----
Mr. Frank. So taking everything else into account, you are
making this finding of discrimination, everything else being
equal, it's not that this is more complicated here or more
frequent here, given all that, there was still a pattern of
discrimination?
Mr. Zinser. It was clearly that the enforcement in the
Northeast region is different than enforcement in other regions
and you have to look at that specific region for the answer, I
believe.
Mr. Frank. Well, then I will repeat my question. Is anybody
doing that, Dr. Lubchenco?
Ms. Lubchenco. Congressman, it's pretty clear to me there
is a strongly adversarial relationship in New England. And I
think that is particularly problematic and is one of the areas
that the IG report flags and one that we need to spend a lot of
time----
Mr. Frank. I appreciate that. But you know, some of us have
made some suggestions about ways you could have ameliorated
that, through personnel and elsewhere. We haven't gotten
anywhere with those. But I appreciate that. But that means we
need to work seriously on trying to ameliorate that, that is,
with personnel and other factors.
And it also maybe it's suggesting maybe our rules are more
complicated than elsewhere, and that's another argument for, I
think, more flexibility in the statute so that we get less
monkey business in the regulations.
Thank you, Mr. Chairman.
Mr. Kucinich. I thank Congressman Frank.
Mr. Jones, I've seen you sit through a series of questions
to you and when the question relates to your conduct of office
in the context of Mr. Zinser's report, you repeatedly say, Look
at it, study it, but do you get it?
Mr. Jones. I get it loud and clearly, sir.
Mr. Kucinich. Excuse me?
Mr. Jones. I get it loud and clearly. I understand your
point and his point.
Mr. Kucinich. What is it that you get?
Mr. Jones. That there is a desire for the approach to how
we conduct law enforcement operations in this organization----
Mr. Kucinich. Tell me more.
Mr. Jones. We will evaluate and see what has to be done
with the criminal investigator position versus using other
types of positions. We look carefully at the cases that are
charged to determine the merits of those cases and assure that
persons are charged fairly, and we will follow through with the
other direction that we get from Dr. Lubchenco in terms of
management of the fund and any questions or issues that come up
with regard to the fund.
I take Mr. Tierney's point directly with regard to the
issues and his concerns for followup in the previous meetings,
and I can assure you that any future indications such as that
and some of past ones we will also be digging into and taking a
very close look at.
Mr. Kucinich. When you hear what's going on, this
adversarial climate that's been described, do you take any
responsibility for creating that?
Mr. Jones. I certainly do. I have to. I have been with the
program for 10 years and your point that having looked at some
of this more closely should have been done, I take that very
directly and look at that, as well.
And again, my staff, the people that work with me, I have a
greet deal of confidence in. I'm not criticizing them, and I
will not state directly that in evaluating the changes that we
have to go forward, that I am going to place blame in any way,
shape, or form below my level.
Mr. Kucinich. So you are going to take responsibility?
Mr. Jones. I will take responsibility.
Mr. Kucinich. And you are also looking at what you can do
to try to amend some of the deficiencies that Mr. Zinser has
pointed out; is that right?
Mr. Jones. That's correct.
Mr. Kucinich. You are aware of how the fishermen feel with
respect to arbitrary, even capricious, heavy-handed treatment
of them, are you aware of that?
Mr. Jones. I'm aware of it. I have talked with some of them
personally and on different occasions have met with them
personally, and I do understand that, and obviously not as
frequently as I could have or should have, but I can meet with
them and spend more time with them.
Mr. Kucinich. You understand, but what are you going to do
about it?
Mr. Jones. Well, once again, we are going to make certain
that our approach and our enforcement efforts are fair and
direct. Again, look at what we have done right, which, again, I
want to reiterate and say clearly we have done many things
right.
The Attorney General or, excuse me, the Inspector General
has said that they have not found widespread abuse, but he
indicates specific problems. So we are going to look at what
we've done right and we are going to look at what we've done
wrong and try to determine exactly what we need to change to
make sure that we resolve those issues.
Mr. Kucinich. All right. The Chair recognizes Mr. Tierney.
Mr. Tierney. Thank you. You yield?
Mr. Kucinich. I'm yielding the remainder of our time.
Mr. Tierney. Mr. Jones, I hope that part of that will be
review of the individuals that are responsible for enforcement
in this Northeast region, and it's through a case-by-case
analysis of their behavior and conduct and attitude and be able
to determine that because that seems to me it may not be
widespread, but certainly is focused here in Northeast and
you've certainly heard a large number of complaints and
allegations from this area. So that will be important for us.
Ms. Lubchenco, I hope you will also take a look at that in
terms of the importance of making sure that analysis or review
of personnel is done, because besides the complexity of
regulations, that seems to be another factor in here.
With respect to the complexity of the regulations and the
lack of flexibility in the statute, do you have any sympathies
at all for legislation that's now pending that would provide
more flexibility? Some argue that it's already in the statute,
that this would be an exercise. I can give you that option, as
well. Would you exercise more flexibility in allowing fishing
to proceed? Or do you support a change in the statute that
would allow, therefore, some of the exemptions to be changed so
that when it is appropriate, people get out and fish for a
living?
I know you heard from Mr. Levins this morning, that with
respect to your comment that you would like to help people with
job training and loans, but that's not the problem here.
There's a lot of fish out there that people can get. People
don't necessarily want to take a loan. They don't necessarily
want to get retrained. Where there's fish out there, they want
to earn their living by fishing. Can you accommodate that and
support either a statute change or different way to enforce
these regulations to make sure that happens?
Ms. Lubchenco. Congressman, I'm not sure that the
complexity of the regulations is going to be fixed with
increasing flexibility. I think they are both valid issues to
be discussed. I understand the current economic situation and
the desire of fishermen to be out fishing. It's our intent to
work with them and to identify ways that we can continue to
rebuild all of the stocks while still maintaining viable
livelihoods for those fishermen.
Mr. Tierney. When you say ``viable livelihood,'' fishing?
Ms. Lubchenco. Yes.
Mr. Tierney. Or are you talking about alternatives?
Ms. Lubchenco. Fishing.
Mr. Tierney. And you are talking about making sure--well,
we can get into it in more detail later. I really wanted to
know your attitude about that. I thank the chairman for
allowing this time. We need to find a way to make this work,
either by looking at the way we put it in practice, the
existing regulations of law, or changes we need to make.
Thank you.
Mr. Kucinich. I thank the gentlemen. This concludes the
first panel. I want to thank the witnesses for appearing. The
subcommittee will have additional questions which we will
submit in writing. We ask for your cooperation in answering the
questions. I also want to say that this subcommittee will
retain jurisdiction over this matter and we will follow IG's
recommendations and will see how effectively NOAA responds to
them.
Again, thank you to the first panel, Mr. Zinser, Dr.
Lubchenco, Mr. Jones, for your presence here. I know it hasn't
been particularly easy, but the subcommittee is going to be
insistent, not just getting answers, but seeing a change of
direction.
Thank you.
I'm going to call the next panel. I'll start introducing
them so we can keep moving here.
Mr. Stephen Ouellette, who is an attorney, has been
practicing here in Gloucester for over 20 years. He represents
local fishermen who are charged with violations of Federal
fisheries regulations.
Richard Burgess is a fisherman and boat owner who lives
with his family in Manchester, Maine--Manchester, Mass. He's
fished since he was a teenager, owning fishing vessels since
1976. He currently owns four small ground fish gill net
vessels, home port in Gloucester. Eight families are supported
by the fleet of boats. He serves as president and director of
fisherman organizations, including being founder and director
of the Northeast Seafood Coalition and serving on the board of
the Massachusetts Fishermen Partnership and the Massachusetts
Fishery Recovery Commission.
Mr. Jim Kendall is a former New Bedford scallop boat
captain and fisherman for many years, who now owns his own
seafood consulting company, which counts many fishing-related
businesses and organizations as its clientele. He is also a
former two-term New England Fishery Council member.
As with the first panel, it's the policy of the Committee
on Oversight and Government Reform to swear in all witnesses
before they testify. I would ask that the witnesses rise and
raise their right hands.
[Witnesses sworn.]
Mr. Kucinich. Thank you. Let the record reflect each of the
witnesses answered in the affirmative.
As with panel one, I ask that each witness give an oral
summary of his testimony. Keep this summary under 5 minutes in
duration. Your complete written statement will be included in
the hearing records.
Mr. Ouellette, you will be our first witness. I ask that
you proceed.
STATEMENTS OF STEPHEN OUELLETTE, ATTORNEY; RICHARD BURGESS,
GLOUCESTER-BASED FISHERMAN; AND JIM KENDALL, NEW BEDFORD
SEAFOOD CONSULTING, FORMER SCALLOP FISHERMAN, FORMER NEW
ENGLAND FISHERY COUNCIL MEMBER
STATEMENT OF STEPHEN OUELLETTE
Mr. Ouellette. Good afternoon, Chairman Kucinich,
Congressman Tierney, Congressman Frank. I want to thank you all
for coming to Gloucester and for the time that you have devoted
to this important issue.
At the same time, obviously, I would like to thank our
host, Mayor Kirk, for all that she's done in bringing together
NOAA officials and members of the fishing community. Most
importantly, I would like to thank my Congressman Tierney and
my representatives from the state legislature who worked
together to really bring together the necessary forces to get
the Inspector General to investigate the important issues of
NOAA law enforcement.
And especially on behalf of the entire industry, I would
like to extend our thanks to Mr. Zinser and his staff for
interviewing many participants in the fishery, for the
courtesies they extended in making themselves available at odd
times and odd places and to the thorough job and report that
they have done and are still doing.
Initially, I had some very prepared remarks and I think I'm
going to have to get off script just because of some of what I
heard today.
Let me tell you that although I represent individuals in
enforcement cases as an attorney, that was not my intent when I
opened a practice on Cape Ann. In point of fact, it was a very
small part of the practice.
When I first came up here from Boston in 1994, I got
heavily involved in the management process and believed
wholeheartedly that the industry, in conjunction with the
National Marine Fishery Service of NOAA, could make a
difference and return our fisheries to a sustainable condition.
For over 15 years I have worked alongside the hardworking
fishermen of New England, an honorable group, and I'm honored
to represent them. Sadly, however, over the course of 15 years
of sacrifice, watching vessels disappear, watching the fleet
shrink, little has been returned to this industry. Instead, all
we have seen is an increasing set of complicated regulations
that have increased the regulatory burden on small business
owners and made conducting a business virtually impossible on a
day-to-day basis.
We have seen fish stocks rebound. Currently, at least in
the last fishing year, despite the availability of rebuilt
stocks, approximately $500 million worth of seafood was not
landed in Massachusetts and the rest of New England that was
available according to NOAA scientists, and the reason for that
is the lack of flexibility in the Magnuson Act.
At the same time, I see a bunch of small businessmen who
are burdened by unbelievable regulatory burden. Some of it is
necessary because of the need to account for variations in the
fisheries, but alongside me I have approximately 6,000 pages of
permit holder letters that have been sent to each permit holder
over the last 10 years.
To some individuals like Mr. Burgess, who sits alongside
me, he receives between 11 and 18 sets of these notices every
year. They are complicated; they are confusing; they are often
conflicting.
At the same time, NOAA and NMFS, who are supposed to be
working with us, have began to enforce these regulations a
manner in which can only be described as un-American. The fines
are unbelievable. The minimum fine--there is a penalty schedule
that's attached to my statement--starts at $5,000 for a
violation, for the first violation, up to $80,000 for the first
violation. Fines are repetitively charged.
Over the last 10 years we have seen fines change from
serious fines for conservation violations to half-million
dollars fines for late payment. The agency seems to have lost
total touch with the people it regulates.
Some of these violations, in fact, we discovered were being
observed by NOAA personnel who sat by idly knowing that
somebody was not getting a report in timely and then turned it
over to law enforcement who issued half-million dollars fines
all for unintentional, totally understandable violations.
The situation is unbearable. And that is why eventually
some of us, and for 10 years I have been writing to my
congressional delegation requesting that they investigate and
make changes. I'm very happy that you have. But much harm has
been inflicted on these agency--on the industry over the last
10 years and something needs to be done both for the future and
to address those people who were unfairly treated in the past.
I know that I have run over, but again, one of the major
problems we have is the process by which fines are set. This
issue of what factors go into it by NOAA attorneys, we are
representing respondents, it is our responsibility to argue to
an administrative law judge why the fine is inappropriate, yet
we are not allowed to know the basic elements that the
attorneys use in setting the fines. So we end up in an
impossible situation; and as a result, many fisherman do
settle. They settle at amounts they can't afford to pay.
Ultimately, in 2 years, some amount comes due, they lose their
boats, they lose their homes, they lose the ability to put
their children through college and they lose--we lose an
important part of our culture.
[The prepared statement of Mr. Ouellette follows:]
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Mr. Kucinich. Thank you very much, Mr. Ouellette.
Mr. Burgess, you may proceed.
STATEMENT OF RICHARD BURGESS
Mr. Burgess. Thank you, Chairman.
On one of my boats, one out of my four boats over the past
few years, just to make it very simple, I have had one of Mr.
Jones's law enforcement agents call me into an office and say,
``We have got a problem with your captain.'' As time went on
during the short meeting, the agent wanted to know how much
money I paid my captain, how much money I paid myself, how much
money my wife made at her job, how much money I have in my
savings account and my checkbooks, and I called Mr. Ouellette
and it went from there.
Two years ago I had the same vessel that has three permits
on it. We were within 2\1/2\ days of using up the first permit.
We had a leasing agreement setting in the law enforcement
office in NOAA. I called the woman that posts these days at sea
up in her computer and lets us know, when they can, how many
days we have left. She said, ``Rich, I believe you have two,
I'm not positive because we have been two or 3 weeks out of
date on this whole computer system,'' but she says, ``I believe
you have two-and-a-half days left on your permit, on the first
one out of three.''
I had a personal problem. I couldn't go down to the office.
She said, ``There should be an agent in here at any time to
sign the leasing agreement. As soon as it's signed, I'm going
to post the days on the computer. If your boat goes over a day
or two, don't worry about it, I will take care of that.''
For some reason the agent came in, grabbed the leasing
agreement, and said, ``You are not to say a word,'' took the
leasing agreement, 5 days later I was called, the vessel was
red flagged, ordered back to port, the catch was seized, I was
fined by Chuck Juliand $27,000. I called Mr. Ouellette.
As the time went on, Mr. Julian said, ``If you don't pay
the 27 right now, if you want to go in front of one of my
judges, you will be paying $120 to $140,000.'' I settled on
25,000 bucks. I was scared to death that they wouldn't give me
the boat back, I couldn't get the boat back to send it fishing
and pay the payments until I paid the fine.
This Yellowtail exception letter with the Gloucester
Auction House we've been heavily penalized, which is totally
unconstitutional, and as far as I'm concerned, unfair. I went
to the Fishery Service and I asked them for the letter. I had
it on three boats. I said, ``I'm sending a boat Yellowtail
flounder fishing.'' They said, ``You don't need it. Discard it.
We are just going to get to rid of it anyway.'' I said, ``Are
you sure?'' They said, ``Absolutely.'' The boat went fishing.
After the auction house was raided, and all they got out of
that whole thing was 40 boats that had--that didn't have,
somewhere around 40 boats that didn't have the Yellowtail
exception letter. My captain got called in. After he was called
in by Gino Morrow and another agent in a little cubical, they
said, ``If you tell us, rat out the auction house what it's
been doing illegally, we will throw this away.'' That was my
captain.
After that they called me. I called Mr. Ouellette. We went
in. They said the same thing to me, ``If you tell us what's
been going on back at the auction house, we will tear this up
and you won't get a fine.'' Well, I said, ``OK. Fine. I will
tell you, I was one of the first boats to go to the auction
house. It's the best thing that ever happened to this region.''
I said, ``There is nothing going on in there. If there was, I
won't have my four vessels there. It's very simple.''
Gino Morrow looked at me, the agent, and said, ``That's not
good enough.'' The FedEx truck came to my house about a month
later, $58,700 fine for not having a piece of paper aboard the
boat that I was told I didn't need. They said that's the way
law enforcement handles it. Just because someone at the Fishery
Service told you you didn't need it, that's regardless. We say
you needed it, you needed it, period.
This past May 1st, I always take all my permits up for
every vessel, hand-deliver it to the office up here in
Gloucester, make sure I have everything accounted for, all the
permits are on the boats. For some reason, somehow this same
vessel didn't get its yearly letter of authorization to go
fishing. I thought I had to go to the board for the boat with
all the other paperwork. They let the boat go 8 days fishing
out of New Bedford, 100 miles offshore on a 42-foot boat
because this region up here is totally shut down for April and
May.
Mike Henry, the officer in charge, called up and said, ``We
know where your vessel is. It's 100 miles offshore. We are
going to have agents in New Bedford order the vessel in. It's
going to be seized.'' I said, ``Why?''
``You don't have your Federal fishing permit.'' I said, ``I
most certainly do.'' Come to find out the month prior they had
sent me a notice that said, ``You do not have one vessel trip
report from December on record.'' The boat was tied to the
dock. The only thing we had to stay tied to the dock for the
120 days out of the season, we cannot fish with the vessel. The
captain was fishing in November, he sent in November's
logbooks, and he sent in the December logbook that checked off,
did not fish, and he made the mistake, he wrote the 11th month,
not the 12th month. They wouldn't tell me that. They did not
bring that forward until Mr. Ouellette, once again, or it was
probably David Smith went up and tried to figure out what took
place. They didn't give me the permit. They let the boat fish 8
days and then called me up and red flagged the boat.
It is criminal. I don't care what the other people have
said here. What's taking place is criminal. We have been under
gestapo siege from the Fishery Service law enforcement. They
don't give you the right time of day. They come down to the
boat constantly with weapons. They are constantly looking for
your permits day after day after day. We leave the dock at
three in the morning, we come back at five or six at night. All
we want to do is go home and see our wife and kids. They won't
let us do it. You've got to constantly show the permit day
after day. What's taking place is, just as Steve said, un-
American. It's not good.
Thank you.
[The prepared statement of Mr. Burgess follows:]
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Mr. Kucinich. Thank you for being here, Mr. Burgess.
Mr. Kendall, you may proceed.
STATEMENT OF JIM KENDALL
Mr. Kendall. Thank you, Chairman Kucinich.
I would like to reiterate what Mr. Ouellette said earlier
and offer my thanks for the opportunity for us to provide this
testimony. I'm sorry. I'd like to offer my thanks for the
opportunity to offer our testimony before you. And hopefully
something can come back to offer some relief to this industry
that is so much a part of our lives.
But my name is Jim Kendall and I have been a commercial
fisherman, well, I have actively fished for 32 years. I was a
scalloper out of New Bedford. I ran several boats. I came
ashore because of a severe injury that wouldn't allow me to
fish any longer. I'm lucky enough, I guess, in a manner of
speaking, to stay within the industry on the fringes and work
with the people that I know best.
Over these years, I have come to hear some terrible
stories, as well, but I'm not here to provide anecdotal
evidence, because there are people that can give you their own
heartfelt grief and true testaments.
Some may wonder why I'm testifying before this committee
because so many years have passed since I fished and actually
had dealings with law enforcement. It's been more than 25 years
since I was cited for my one and only violation in all my years
of fishing. Though the years have not lessened that drama, and
I was found guilty for exceeding what we called the scallop
meat count. At that time it was 40 count in place, which meant
that you couldn't produce scallops that were more than 40 to a
pound. If you had a trip of 18,000 pounds, they would take
average counts out of that trip, 10 of them, and then do the
math and add them up and you had to average 40 scallops per
pound or less on that.
One particular trip we didn't. It was 1985. There was
particularly bad weather, scallops froze. They didn't gain any
moisture and we lost. But the particularly troubling point of
that case was we went to court. We were one of the first cases,
I guess we were somewhat of a poster child in that manner, and
at the trial I mentioned that the officers or the agents in
charge forgot to write down three of the counts as they were
doing their averages, and the agents never denied that. They
actually admitted that they did forget to write them at the
time and put them in later.
The judge said, So what? It didn't really matter. It was no
consequence. We produced several other statements that we
thought would help describe the problems inherent in that type
of fishery management, and in the end the judge said the fine
was $14,070.71. That was 25 years ago. That was just the
beginning.
That sounds small compared to what you hear here today, but
that was 25 years ago, and the judge looked at me and told me
we were lucky he didn't increase the fine. So there was
definitely no chance of appeal of that particular judgment.
Was this an unfair enforcement action? Not with the facts I
presented, but like I say, when you look at the facts and the
judge dismisses not writing down the three counts, I think
there was something particularly troubling about that aspect of
it.
In subsequent years, I have been asked to assist other
fishermen or vessel owners who have run afoul with the
regulations. In each of these cases I felt, while an infraction
may have occurred, it was never a willful or deliberate attempt
to break the law. But the resultant penalties would belie that.
In fact, there never did seem to be any rhyme or reason to
most of the penalties levied or many of final settlements. A
lot of the fines are put in with the scare tactic with the
intent that if you get an offer to settle up, you are much
better off to take it and run. A lot of fisherman,
unfortunately, have had that circumstance happen.
I've had a pretty good relationship with enforcement over
the years, with many, if not most, of the law enforcement
agents. It has put me at some odds sometimes with commercial
fishermen. How can you deal with the guys that are hurting us
so badly? Someone has to.
I was chairman of an enforcement group called The Law
Enforcement Working Group, which was actually authorized by the
1996 reauthorization of Magnuson. It's been the only time that
I know of that there was a working group like this established
by Magnuson to take people from within the industry and work as
an advisory panel with a commandant of the First U.S. Coast
Guard. As such, we met usually quarterly with enforcement
agents, Coast Guard enforcement, NOAA general attorneys, and
fishermen. We'd all sit in a room, we'd speak informally, and
get to some of the points and be able to deal with some of
issues.
Unfortunately, basically, one gentleman took offense with
having to deal with us in that intimate relationship and began
to forget the schedule for coming meetings. Initially I think
he broke the Magnuson Act by virtue of him just disbanding this
group.
Because of my position as chairman there, I often appeared
at a center called The Nerve Tech, which is a training center
for Coast Guard law enforcement personnel and boarding
officers, and we would bring industry people in to meet.
These are the kinds of interactions where these gentlemen
have to get together with the fishing industry to learn a
little bit more about them rather than on the other side of the
table where there's a pencil and paper where they are about to
charge the fisherman.
I tried over the years to encourage this, go back to this
particular type of joint workmanship or cooperation, but it's
failed to come back onto the table. So I went home to look at
what would they consider looking at these type of arrangements
to get these people at the table together.
Thank you.
[The prepared statement of Mr. Kendall follows:]
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Mr. Kucinich. Thank you, Mr. Kendall.
The Chair recognizes Mr. Tierney for 5 minutes.
Mr. Tierney. Thank you. First of all, thank you all for
your testimony here today, but thank you for consistently over
time providing us with the information that we need and the
firsthand factual accounts of what's been going on.
Mr. Ouellette, is it your opinion that there needs to be
change in the statute, or is it your opinion that the current
language, if used properly and applied properly, would allow
for some remedy in the situation?
Mr. Ouellette. It's an interesting question. It implies
that somebody is actually looking at the statute and its
intent. I assume that Dr. Lubchenco and her staff would do
that.
I don't believe that there is a problem with the way the
statute is drafted, per se. The statute provides a fairly high
limit for the setting of penalties. I believe the statute sets
up to $100,000, but apparently Congress has given a cost of
living on fines and it's now up to $140,000 due to that
secondary state.
The difficulty that I think we have is that--and I have met
with NOAA counsel about this frequently--is their statement
that they believe that Congress has advised them that no
violation should be the cost of doing business. Those terms
come up frequently. So they read into that any violation can
theoretically be a business-ending violation. They cite the
language in the statute and in the regulations which allows
NOAA to assess fines and to force the reorganization--force the
reorganization of an individual's business, which we all know
is bankruptcy.
Mr. Tierney. As a lawyer, did you find that language that
they refer to in the statute?
Mr. Ouellette. The language, I mean the authority is there.
It's virtually----
Mr. Tierney. I meant the language about not treating it as
a cost of doing business.
Mr. Ouellette. No, it's not there. Again, we all know that
there are situations, particularly you read about the category
2 fish cases where somebody, you know, pulls into a port with
$5 million worth of fish, pays the $100,000 fine, laughs and
ships off fish.
We don't have those situations in domestic fisheries. Our
catches are much smaller. All of these vessels are U.S.
permitted and they all have some tie to the United States so if
they did commit a major violation, they lose their permit,
which actually nowadays is probably the most valuable aspect.
There is nothing that I see that requires them to hand out a
half-million-dollar fine because somebody filed some logbooks
late that actually aren't even used in the science anymore.
Mr. Tierney. Mr. Ouellette and Mr. Burgess on this, Mr.
Kendall, you may not be able to help us, but if you can, I ask
you to do so, are we talking about the same enforcements agents
over and over and over again, or are we talking about who,
regardless who the agent, is observing this kind of conduct?
Mr. Ouellette. This actually isn't the agents who are doing
this in most cases. The agents investigate. I will agree that
in the last 10 years I have become aware of a more aggressive
form of questioning to the point that my clients--we used to
cooperate with law enforcement up until the late 1990's. My
clients are prohibited from talking to NOAA enforcement agents.
As soon as they call me and I know NOAA is involved, even the
agents now know not to question the client.
Mr. Tierney. All the agents or a specific subset?
Mr. Ouellette. All agents.
Mr. Tierney. You find the attitude pervasive?
Mr. Ouellette. Yes. And we also found that increasing from
about 1999 until I really cracked down on the policy with my
clients, that every time a fisherman was charged with
something, a false statement charge got thrown in. And they
were pretty spurious, but they were throwing them in in every
case. That's when we started seeing the criminal investigators
come out and cards come out.
The difficulty with the fines is that those emanate not
from the law enforcement arm, they emanate from the General
Counsel for Law Enforcement, and I'm not sure that we've seen
or heard anything from that branch because they seem to be
independent.
But we see repeat fines, I mean ridiculous fines, out of
the Northeast region on a regular basis. I mean, that's really
what prompted my initial complaints to the agency and to my
congressional delegation going back to the late 1990's.
Mr. Tierney. Thank you.
Mr. Kucinich. Congressman Frank.
Mr. Frank. Mr. Ouellette, I just want to clarify what the
message was. Mr. Tierney asked if you had a problem with the
statute throughout. You were actually talking about the
enforcement part. The lack of flexibility, you weren't talking
about that? So you are saying they can improve enforcement
without a statute change?
Mr. Ouellette. I think you can improve enforcement without
a statutory change. My concern is given the track record
between the industry and this agency, I'm not sure that they
have----
Mr. Frank. No, I just didn't want to--we weren't talking
there about flexibility?
Mr. Ouellette. Right.
Mr. Frank. You talked about the disadvantage you are at
because you can't get the information which they used for
setting the penalties. Is that different than other law
enforcement situations, or are you given less information here
than you might be if you were defending people in other
circumstances?
Mr. Ouellette. In my experience, when I've dealt with other
administrative agencies--fortunately I don't do much criminal
law--it's unprecedented because----
Mr. Frank. It's different.
Mr. Ouellette. Right. Basically, they take the position, we
are attorneys, we assess the fines. Somewhere we do have a
minor set of guidelines----
Mr. Frank. Let me cut through this, and I think Mr. Tierney
and I will initiate a pretty strong request to the fishery
service that they no longer do this. This is the Federal
Government. We are not some individual entity in a dispute. We
have an obligation for be fair to the citizens so the Federal
Government acts in a way that seems to be inappropriate.
I think, if you will support us, provide us memorandum, I
believe we will be able to insist that they provide you the
information not for anybody to get off, but you have some kind
of basis for all this.
Let me say, Mr. Jones, I appreciate your staying here. Mr.
Burgess has made some pretty strong statements. I'm now asking
you, Mr. Jones, to look into those and tell me if you contest,
for instance, someone asking him what he made and what the
captain made, and then tell me if any disciplinary action was
taken or what was done about that. Because once we hear these
things, it's really important for us to know that people are
not going to be doing this. So everyone specific to what Mr.
Burgess mentioned, I would ask that you talk to them.
Mr. Tierney asked the cost of doing business is not--this
notion shouldn't be the case.
Mr. Kendall, who was it that, you know, stopped coming to
those meetings?
Mr. Kendall. Well, former Coast Guard officer by the name
of Captain Raymond Brown. And I think you might recall that you
asked the admiral to appear in your office one time to explain
his actions at that particular point in time. Captain Brown was
a difficult gentleman to get along with. He seemed to think
that all fisherman were violators. Those that weren't, it was
only because he hadn't caught them yet. As a matter of fact, he
made that statement to Ron Avila at one point. Captain Avila
took quite a bit of offense to that. Even to this day he does.
I like to kid him about it. But it was a serious type of thing,
because, like I say, it was a great organization or----
Mr. Frank. Let me ask you--to the court reporter, it's A-v-
i-l-a.
What's the status of that, worth trying to resuscitate? Or
is that too far gone? Is that worth trying to resuscitate or is
that too far gone?
Mr. Kendall. Well, the reauthorization never reappeared in
Magnuson again and it never extended to any of the other
council regions. But I think yes, sir, I think it is very
important that we try to rebuild those particular roads because
that was a way for us to interact with them on a civil level
without getting into our criminal situations. And I think it
worked quite well.
Mr. Frank. Thank you. Mr. Chairman, I will yield back.
Mr. Kucinich. Thank you very much, Congressman Frank.
Mr. Burgess, I listened very carefully to you recounting
your experience with enforcement. Do you feel like you were
being treated as a criminal?
Mr. Burgess. Pretty much, yes.
Mr. Kucinich. Is that in talking to your colleagues who are
fishermen, is that something that your experience is totally
unusual, or have you ever talked to people that have had
somewhat similar experience?
Mr. Burgess. I don't think there is anybody in the industry
around here that would disagree with me right now.
Mr. Kucinich. What do you as a fisherman want to see
changed here? This committee is an oversight committee, but
it's also government reform. What do you want to see changed?
We are here to listen to you. What do you want us to see
change?
Mr. Burgess. Right now the amount of gentlemen that are
left in the industry, we all get along. It wasn't really that
way years ago. Now there is a only a handful of guys left.
Everybody trusts each other; we work together. We want to be
respected as hardworking individuals, small businessmen. We
want to stay in the industry.
If you get a piece of paper and there is a date wrong or
you don't have your paperwork in the boat, I don't want a
$10,000 fine. I want to be able to say, yes, I have it. It's at
home with my paperwork or call the agency, everything is good.
The entire fleet, every owner, captain, the guys on deck,
they are so afraid of doing one thing wrong and losing
everything that they have ever worked for. That's not what we
are all about. We are the environmentalists. We have rebuilt
this fishery. We want to keep it that way. And we just want to
be treated as honest, hardworking people.
Mr. Kucinich. Thank you, Mr. Burgess.
Now, Mr. Ouellette, in your written testimony you have
said, ``Compliance, not fines should be the goal.'' I think we
all agree. Again, can you give us three things, a reform that
the Office for Law Enforcement would do differently to optimize
compliance?
Mr. Ouellette. I would hope so and my--the concern I see
now----
Mr. Kucinich. What can they do? Give me some examples of
what they can do to do it better.
Mr. Ouellette. For example, Mr. Burgess had an issue with
days at sea. One of the problems is that NOAA, who keeps a
record of vessels' days at sea, is often unable to tell us
because they do an internal calculation that we don't have
access to.
It may be a scalloper as to how many times he dips within
the line--I'm not sure you are familiar with it, but boats are
tracked. They are tracked every time they leave port by an
electronic monitoring system. NOAA is unable to give us often a
vessel's days at sea. Yet, if you are out there, they will
continue to issue you sailing numbers and they know exactly
when to meet you at port to seize the catch because they know
when you are coming in.
There are many instances where NOAA personnel observe or
are able to detect potential violations and they really just
sit back and let them occur. That's a significant problem that
I have.
A recent case we had that they were late on their logbook
compliance. People at the agency knew it. They said it's a
crucial issue, they had to have this data on a weekly basis,
yet they waited 8 months before they took any action, and the
only action they took is not to call the boat and say, can you
give us the number? They called NOAA Law Enforcement who issued
a quarter-million-dollar fine.
We have--there is really a very poor working relationship
between the industry and the agency and that's something that
needs to be improved.
Mr. Kucinich. Let me followup on that.
Do you think serious reform of OLE is possible under the
current leadership?
Mr. Ouellette. I'm very concerned with the ability of NOAA
to work with this industry in a committed, cooperative fashion.
Mr. Kucinich. Mr. Burgess, would you answer that question.
The question is: Do you think serious reform of OLE is possible
under the current leadership?
Mr. Burgess. It hasn't taken place yet. It should have
taken place years ago.
Mr. Kucinich. Mr. Kendall.
Mr. Kendall. I would suggest that the problem doesn't start
at the bottom. It actually starts at the top, sir. If this is
going to come, it's going to have to filter its way down. They
can't continue to treat the industry as criminals, common
criminals, and expect that the agents are going to work with
them on a one-to-one basis. People just don't work that way.
Once you buildup that feeling that there is something wrong
with this person, you tend to look at them a little bit
differently. They have.
Mr. Kucinich. Thank you, Mr. Kendall, and I thank the
panel. I'm going to ask----
Mr. Frank. Can I just--can we get----
Mr. Kucinich. I was going to go to closing statements.
Mr. Frank. I will wait.
Mr. Kucinich. Thank you, Congressman Frank.
Congressman Tierney, you are recognized for your closing
statement.
Mr. Tierney. Thank you. First of all, thank you, Mr.
Chairman. Again, we appreciate it a great deal that you were
willing to come here and have this hearing in Gloucester. It
means a lot to us and we appreciate that.
Barney Frank, we appreciate all the work that you have done
on this issue over the years and you are continuing to do. It
is important.
We appreciate the mayor and local representatives and their
effort and everybody in the community here. I think what we
have here today is a good example of what we have been
screaming about for a period of time with varying and
unsatisfactory results. We have a new Administrator. Even
though I know some people thought that she was listening today
and they are not quite sure she heard, we are going to keep
working at it to make sure that what was said is heard, as
well.
Mr. Jones, thank you for staying here. I hope you heard it,
including the introspection that's necessary at the top
starting with you and then right down through all your
personnel and working with that. This is not something that you
can continue. It's gone on for far too long.
We need to look at it legislatively. We need to look at the
way the enforcement is actually exercised, and all in the
record that you put forward today is going to help us to go
back to our colleagues. I think the legislation is the first
push on that and we can continue to push on how they are
enforcing that law and take a look at it.
We will expect the reports from Mr. Jones to the incidents,
individual incidents, and from Mr. Zinser, the Inspector
General, individual incidents. We are not all about looking
back, but it's important to make sure we identify what went
wrong and make sure that's rectified so we can go forward and
have some knowledge. What we are going to do then is to clarify
and correct the situation.
Again, I want to thank you, Mr. Chairman, and Mr. Frank. On
that, we have some work to do and we will be doing it.
Mr. Kucinich. Thank you very much for your closing
statement.
The Chair recognizes Congressman Frank.
Mr. Frank. I join my colleague--first, I appreciate Mr.
Tierney taking up this issue and then for the chairman to come
out from his district and from Washington, I appreciate it.
I did want to say there is occasional goodness. Mr. Kendall
reminded me when I became the representative of a fishing
industry, New Bedford, in 1992 and one of the first things I
learned about was the meat count. We did get that abolished. So
that is no longer there. But it's relevant because it was an
inherently difficult means of enforcement and it reinforces my
view of the notion that you have to get the law right because
there's some things that are always going to lead to problems.
Beyond that, let me reiterate, law enforcement is a tough
business. And no one should take this as any denigration of
people who are in the law enforcement business. These are men
and women who do a tough job. They do a dangerous job
sometimes. It's not their fault if they are put in
inappropriate situations. If people who are in law enforcement
are put in a situation which primary job is to be elsewhere,
it's not necessarily a criticism of them. Obviously, there are
some individuals that commit abuse. So it's important, while
maintaining respect for the whole operation, to be able to deal
with that.
So I do look forward to hearing about how this is going to
be corrected and I have to say, Mr. Jones, and to Dr.
Lubchenco, Mr. Schwaab, who is here, who is going to be head of
NMFS, I have not yet heard a response proportionate to the
problem that has to be resolved. We will be looking at that
carefully, but I think there is a natural tendency to kind of
denigrate the value, the seriousness of the problem.
Finally, Mr. Tierney and I, we look forward to working with
our colleagues. People say, Oh, I don't like to say I told you
so. That's a lie. Everybody loves to say I told you so when you
get those opportunities. I find as I get older saying I told
you so is one of the few pleasures that does not diminish with
age. So I like to say it.
But Mr. Tierney and I voted against the Magnuson Act in
2006 when it was passed by the lame duck Congress signed by
President Bush. It was, I think, too rigid and inflexible then.
I do not believe you can solve all of these problems that are
also dealing with the statute. So we will continue to press for
improvements in the administration within the statute, but we
will also bring this back and we will be meeting soon with a
group of our colleagues up and down the Atlantic coast, not
just the Northeast, but from Maine to Florida and I hope
elsewhere as well because we are determined to begin the
process of amending the Magnuson Act. That's an essential part
of fixing this problem.
Mr. Kucinich. I thank my colleagues, and I want to say that
for a congressional investigative subcommittee to have a field
hearing anywhere, just doesn't happen. The reason why we came
here to Gloucester is because Congressman Tierney expressed to
me his great concern about arbitrary, aggressive, even abusive
enforcement practices.
I agree with my colleague, Mr. Frank. We are not against
law enforcement. We make laws. Laws are enforced. That's part
of the cycle that government's involved in. But what brought a
congressional investigative subcommittee here were a number of
red flags that we saw in the IG report and that came from
talking to dozens of people we interviewed prior to this
hearing.
So, of course, to Mr. Frank and other Members around the
seacoast, this is an ongoing interest, and as it's an ongoing
interest in this investigative subcommittee, we are going to
retain jurisdiction.
You know, when I heard Mr. Burgess's account, and I'll just
say this to Mr. Jones, and I'm glad you stayed to listen, the
gotcha climate that he portrays, if you had been treated as a
witness with a gotcha, you would have been humiliated before
this subcommittee, but we don't do that.
You have to realize when you have the kind of power that
law enforcement does have, you enforce the law, but you also
have to be careful that it's not done in a way that seems
partial, arbitrary and doesn't--if you are going to put
somebody out of business, you better have a damn good reason.
This subcommittee is going to continue to look at this. I
want the Administrator to understand that we are not going to
let this go. And I look forward to asking some more questions.
We will submit some followup questions.
I want to thank you for your presence here. I want to thank
Mayor Kirk and the city of Gloucester for welcoming us in this
beautiful structure here, this historic structure. This town
has been a part of the history of the United States and its
contribution to commerce for hundreds and hundreds of years,
and if this subcommittee has anything to do about it, and
certainly Congressman Tierney does and will, we are going to
look forward to seeing you continue to do your work for many
years to come.
This subcommittee has adjourned.
[Applause.]
[Whereupon, at 1:15 p.m., the subcommittee was adjourned.]
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