, Gloucester, MA

March 18, 2010

NOAA chief eyes 'reforms' in policing

Lubchenco never mentions chief, cites legal 'team'

By Richard Gaines

The National Oceanic and Atmospheric Administration yesterday announced a suite of detailed reforms with an eye toward "moving toward an effective enforcement program" for federal fisheries, the agency's chief administrator said.

The agency has been chipping away at longtime patterns of dissonant behavior since January, when a 28-page inspector general's report outlining misconduct, lack of leadership and provocative actions against fishermen and fish brokers dropped with a thud into the lap of NOAA chief administrator Jane Lubchenco.

Yesterday, Lubchenco made no mention of Dale Jones, whose 11-year record heading NOAA law enforcement has become a major distraction to Lubchenco and a bar to rapprochement with a fishing community whose complaints have been corroborated through Inspector General Todd Zinser's investigation and preliminary report.

She did, however, announce a commitment to healing scars from wounds and slights to the fishing industry over many years by agents cited by the inspector general for confusing their "criminal" orientation with the technical and reporting violations of fishermen and dealers.

Many fishermen were pushed out of business by heavy fines for minor violations.

Another point of emphasis by Lubchenco and her new law enforcement leadership team was the need to standardize policies and reviews of penalty proposals and prosecutions, and shifting the presumption in administrative trials for the accused from guilt to innocence.

Under one reform published for comment yesterday in the Federal Register, judges will no longer be required to state "good reasons" for departing from the fines or penalties proposed by NOAA law enforcers.

The law enforcement system — including its penalties — was found to be ad hoc and capricious by Commerce Department IG Zinser in January.

He sent teams across the country last year on a six-month investigation that began in and around Gloucester after a barrage of pleas that grew into a powerful, bipartisan, congressional coalition citing abusive treatment of fishermen at the hands of federal fishery law enforcement agents.

U.S. Sen. John Kerry applauded the progress report, but said more was required.

Previously, Kerry, and Congressmen John Tierney, Barney Frank and William Delahunt urged Lubchenco to replace Jones, who had been chief of the Hagerstown, Md., police force before taking over the national organization of 225 agents. Together with the Coast Guard and state environmental police forces, those agents enforce the federal Magnuson-Stevens Act and its rules, regulations and mountains of paperwork.

"It's an important first step but the key word is first, not last," Kerry said yesterday in a prepared statement. "Obviously, we're disappointed that NOAA hasn't yet stopped the prosecutions of our fishermen and has taken no action against their chief enforcement officer for actions that badly hurt trust in the community.

"We'll keep at this," Kerry promised.

Lubchenco released her own four-page summary memo to Zinser, as promised just before her self-imposed March 20 deadline. She also released a package of internal memos detailing how her new law enforcement team — Chief Counsel Lois Schiffer and Eric Schwaab, who heads the National Marine Fisheries Service — intend to clean up the law enforcement morass identified by Zinser's staff.

The thick package was notable for the absence of any reference to Jones, who is under IG investigation for allegedly authorizing a mass document shredding while Zinser's investigators were at work, and for allowing unregulated use of the $8.5 million asset forfeiture fund that was built with the penalties paid by members of the fishing industry. Testimony at two congressional oversight hearings earlier this month — one in Washington, the other at Gloucester's City Hall — said the fund had been used for "overseas travel" and other "purchases."

At the D.C. hearing into NOAA law enforcement wrongdoing, Lubchenco said she would await the results of Zinser's research into the allegations of document shredding. As many as 140 files were destroyed last fall while Zinser's team was active inside NOAA law enforcement, the IG has said.

Asked about the significance of Jones' name's absence from Lubchenco's written report, a NOAA spokeswoman said yesterday, "As Dr. Lubchenco testified recently, NOAA takes document destruction seriously."

"We know the question is under investigation by the Inspector General and we will take his findings into consideration," she said.

Lubchenco's memo to Zinser repeatedly cited "Lois and Eric" as her law enforcement team. By statute, Schiffer heads the litigation section and government lawyers, while Schwaab has responsibility for the investigative side that serves under Jones.

Among the announcements yesterday, Lubchenco revealed that the accounting firm KPMG had been hired by Zinser's staff trace the history of expenditures from the Asset Forfeiture Fund. Controls over access to the fund were put in place only in October, while inspectors were sleuthing inside NOAA.

Lubchenco's memo to Zinser said the audit is scheduled to be completed by April 16, with a report to follow. She also announced the date for a law enforcement "summit" with the fishing industry. That is now set to be held in Washington on June 22, and will be directed by the Udall Center for Dispute Resolution.

Schiffer, who was recruited back into government service from private practice, had been assistant attorney general in charge of the Environment and Natural Resources Division at the U.S. Department of Justice during the Clinton administration, with 400 lawyers and responsibility for litigation on behalf of all federal agencies.

In private practice, she lectured on environmental dispute resolution.

Her task at NOAA includes formulating policies, creating manuals, standardizing and normalizing behaviors that according to Zinser were left largely to agents, leading to dramatic disparities in penalties between regions.

In New England — where the protest began in large part over an effort to shutdown the Gloucester Seafood Display Auction for 120 days with a fine of $335,200 — the IG reported that penalties were 2 1/2 times higher than the next highest region, and more than fives times the national average.

Another element of the reform agenda was a series of initiatives to bridge the abyss of mistrust between the law enforcers and the industry. These include a fisherman's forum in the Northeast region to allow more opportunities for fishermen to discuss law enforcement at regional council meetings, coordinated computer tracking, requirements that case plans be reviewed and approved in advance and public access to charging information.

Richard Gaines can be reached at 978-283-7000, x3464, or