Federal IG's office mulls new NOAA probe

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September 20, 2011

Federal IG's office mulls new NOAA probe

By Richard Gaines Staff Writer The Gloucester Daily Times Wed Sep 21, 2011, 02:59 PM EDT

The U.S. Commerce Department inspector general is reportedly close to deciding whether to grant a congressional request for an investigation into "rule-making" by the New England's federal fisheries regulators.

In a letter dated Aug. 17, Congressmen John Tierney and Barney Frank petitioned IG Todd Zinser to open a second investigation.

In June 2009, Zinser began a landmark investigation into law enforcement excesses, vindictive motives and questionable judgment that uncovered scandalous miscarriages of justice leading to cabinet-level apologies last May to 11 individuals and businesses, and reparations totaling more than $600,000.

The diplomatically worded Tierney-Frank letter spoke of a "high degree of mistrust" between NOAA Fisheries and its regional management council and the fishing industry — and followed a more detailed and blunt request for the investigation by New Bedford Mayor Scott Lang.

The congressional request is "under review," said Rick Dubik, spokesman for the IG. "A decision will be forthcoming."

Tierney, who represents the fishing ports of Cape Ann, and Frank, who represents New Bedford, described the investigation as "vital" to restore the trust and confidence of the industry in their government.

They also told Zinser they would "work to secure additional funding for your office through the congressional appropriations process to compensate for the extensive work that was done during the Office of Law Enforcement investigation."

That probe, which essentially began in Gloucester, went on for more than a year and led to the wholesale restaffing of the top echelon within the national ocean police force and the entire cadre of agents and litigators in the Gloucester-based Northeast regional office, which regulates fisheries from Maine to the Carolinas.

The investigation also spurred wholesale reforms of the enforcement system, which had been allowed to operate free from effective oversight and direction for a decade.

But NOAA administrator Jane Lubchenco, who operates as an appellate judge in regulatory law cases, decided against punishing any of her subordinates, leading U.S. Sen. Scott Brown to wonder at a Senate subcommittee hearing in Boston this summer, "What does it take to get fired at NOAA?"

Based on the findings from the law enforcement investigation, NOAA earlier this month announced the shift of its regulatory law cases from the Coast Guard administrative law judge system to the Environmental Protection Agency's ALJ system.

Lang's letter to Zinser on Aug. 8 discussed "evidence" of "bias within the agency in favor of environmental groups and against the fishing industry, and the true scope and degree of the influence of environmental groups over agency rule-making."

Both Lang and Gloucester Mayor Carolyn Kirk have named the Environmental Defense Fund in previous public comments as wielding improper influence over NOAA and New England Fishery Management Council decision-making.

Lubchenco was vice chairwoman of EDF board of directors, as well as an academic political activist at Oregon State University, when President Obama named her to head NOAA in early 2009.

At NOAA, her efforts were focused on accelerating the spread of catch shares, based on the disputed claim that they were a conservation tool, as well as a catalyst producing radical consolidation, favoring the biggest and best capitalized businesses. EDF has also been promoting catch shares as an investment.

New England is in the midst of a difficult transition into a catch share regimen, a commodity market system with participation from quasi-voluntary business cooperatives known as sectors.

Lubchenco has made the elimination of a "sizable fraction" of the boats a stated goal.

The request for the IG to look at the way the catch share rules were made in New England came from Lang barely a month after a federal judge swept aside a multi-stakeholder law suit led by the cities of Gloucester and New Bedford.

Lang's letter to Zinser requesting the investigation referred to a letter from Zinser in which "you expressed the shared view that such a review is merited, but indicated that you could not proceed while the litigation ... was pending."

Now that the federal court case is resolved, he wrote, the way is clear for Zinser to intercede to "contribute to a sense among the public that the 'disinfectant' of sunshine has been duly applied."

Both Lang and the Tierney-Frank letters referred to a report released in April by NOAA Fisheries, conducted by Preston Pate and SRA Touchstone Consulting Group, that identified a number of what the congressmen described as "very serious rule-making issues."

Pate's focus was the New England Fisheries Management Council.

Sen. John Kerry is also due to hold a high-profile Senate Commerce Committee hearing in Boston on Oct. 3.

The initial IG's investigation remains alive via the post-script phase of micro-focused investigations into a number lingering cases of possible justice miscarried.

Those matters are under the auspices of a special judicial master retained by the Commerce Secretary Gary Locke before he resigned to become ambassador to China.

Richard Gaines can be reached at 978-283-7000, x3464, or at rgaines@gloucestertimes.com.