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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

(II)

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

EDOLPHUS TOWNS, New York, Chairman

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

JOHN F. TIERNEY, Massachusetts

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

JIM COOPER, Tennessee

GERALD E. CONNOLLY, Virginia

MIKE QUIGLEY, Illinois

MARCY KAPTUR, Ohio

ELEANOR HOLMES NORTON, District of

Columbia

PATRICK J. KENNEDY, Rhode Island

DANNY K. DAVIS, Illinois

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

DARRELL E. ISSA, California

DAN BURTON, Indiana

JOHN L. MICA, Florida

MARK E. SOUDER, Indiana

JOHN J. DUNCAN, JR., Tennessee

MICHAEL R. TURNER, Ohio

LYNN A. WESTMORELAND, Georgia

PATRICK T. MCHENRY, North Carolina

BRIAN P. BILBRAY, California

JIM JORDAN, Ohio

JEFF FLAKE, Arizona

JEFF FORTENBERRY, Nebraska

JASON CHAFFETZ, Utah

AARON SCHOCK, Illinois

BLAINE LUETKEMEYER, Missouri

ANH ‘‘JOSEPH’’ CAO, Louisiana

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

JOHN F. TIERNEY, Massachusetts

DIANE E. WATSON, California

JIM COOPER, Tennessee

PATRICK J. KENNEDY, Rhode Island

PETER WELCH, Vermont

BILL FOSTER, Illinois

MARCY KAPTUR, Ohio

JIM JORDAN, Ohio

MARK E. SOUDER, Indiana

DAN BURTON, Indiana

MICHAEL R. TURNER, Ohio

JEFF FORTENBERRY, Nebraska

AARON SCHOCK, Illinois

JARON R. BOURKE, Staff Director

(III)

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

(1)

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.]

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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

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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:]

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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.

9

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

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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 ExVerDate 11-MAY-2000 13:22 May 26, 2011 Jkt 000000 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\65126.TXT KATIE PsN: KATIE
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change 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.

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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.

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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

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own data, its own enforcement results for the last 21⁄2 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.

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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:]

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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 fishingdependent 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

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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:]

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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.

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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 sysVerDate 11-MAY-2000 13:22 May 26, 2011 Jkt 000000 PO 00000 Frm 00037 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\65126.TXT KATIE PsN: KATIE
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tem 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.

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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.

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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 OfVerDate 11-MAY-2000 13:22 May 26, 2011 Jkt 000000 PO 00000 Frm 00040 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\65126.TXT KATIE PsN: KATIE
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fice 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 upand-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

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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 $51⁄2

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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 unVerDate 11-MAY-2000 13:22 May 26, 2011 Jkt 000000 PO 00000 Frm 00043 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\65126.TXT KATIE PsN: KATIE
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fair; 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 surVerDate 11-MAY-2000 13:22 May 26, 2011 Jkt 000000 PO 00000 Frm 00044 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\65126.TXT KATIE PsN: KATIE
41

prised—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

42

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

43

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

44

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

45

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?

46

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.

47

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

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ly, 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

49

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.

50

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

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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.

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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 21⁄2 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.

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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.

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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

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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.

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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?

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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.

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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.

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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.

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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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