News

Feds step up probe of NOAA actions

By Richard Gaines
Staff Writer
Published: July 2, 2009

Federal inspectors from the nation's capital — evaluating "allegations of excessive penalties and retaliatory actions" against New England fishermen by fishery law enforcement and regulatory officials based here — are set to begin private interviews with fishermen and their representatives on Monday.

A team of five from the Inspector General's Office in the U.S. Department of Commerce, where fishery regulation is based, will be on the North Shore for an uncertain period.

An e-mail sent to contacts offering testimony and evidence of mistreatment at the hands of the fishery service's agents indicated that separate surveys will be scheduled for residents of New York, Pennsylvania and North Carolina.

All three states are policed and regulated from regional offices of the National Oceanic and Atmospheric Administration and its National Marine Fisheries Service in Gloucester.

The region stretches from the Canadian border through the Carolinas, but the undisputed hot spot is New England.

Here, fishermen and NOAA's fisheries service have fallen into a "seriously dysfunctional relationship," in the description by Jane Lubchenco, the new NOAA chief, at her February confirmation hearing.

The review by the office of Todd Zinser, inspector general for the Department of Commerce, was spurred by chronic complaints that have been filtering up from the wharves through the offices of the state's U.S. senators and congressional delegation.

The review begins during a lull in the decade-long effort by the overseers of the fishery to punish and shut down the Gloucester Seafood Display Auction.

Lawyers for the auction and the U.S. Attorney's office Tuesday were granted a delay by U.S. District Judge Douglas Woodlock until an unspecified date later in the month for a hearing on the auction's motion for an injunction to prevent a 10-day shutdown.

The auction went to federal district court to block the shutdown order, which, days earlier was aggressively publicized by the agency. A reporting team from the Boston Globe that showed up at the auction on Friday afternoon, June 19, announced it was there to meet "Andy Cohen," the NOAA special agent in charge of investigations, and record the reaction of fishermen to the closing, as if a shutdown were imminent. But NOAA had not yet informed auction President Larry Ciulla of the order and its charges, which stem from an alleged "probation" violation based on a case still unresolved in court.

It was a February action against the auction — the No. 1 platform for the sale of as much as 22 million tons of fresh Gulf of Maine fish to the biggest and most prestigious buyers, including Legal Seafoods — that triggered the request for oversight and control of "vindictive" behavior by the special agents and counsel for NOAA's fishery service.

The first request for external review of the motives and scale of the actions against the auction and fishermen was made by state legislators and later by Sens. Edward M. Kennedy and John Kerry and members of Congress with fishing constituencies.

Lubchenco converted the lengthy letters into a brief memo to Zinser that was enough to start the ball rolling. Similar written complaints recently were also registered by elected lawmakers in North Carolina.

The February Notice of Violation and Assessment — or NOVA — against the auction cited mostly bookkeeping and technical reporting failures by the auction and the boats that unload at its wharf, and sought a 120-day shutdown and a more than $300,000 penalty. The general counsel's office also began issuing matching charges against as many as 24 boats.

One such captain, Bill Lee, the well-known Rockport fisherman and underwater photographer, took the first appointment for a 1 p.m. Monday interview with the IG's office investigators. Lee said he hoped the location of the meetings would not leak out, less NOAA send observers to take names of fishermen discussing their complaints.

Assistant IG Scott Berenberg, assigned the case by Zinser, will get the reports from Greg Segbben, the special agent in charge of the investigative team that is heading to the North Shore.

Zinser's office is well aware of the schism between the regulated and regulators in New England.

"I understand the skepticism, I really do," Berenberg said yesterday in a telephone interview. "My job is to make sure that my team operates in a manner that is objective and makes a fact-based assessment.

"We come into this with no prejudiced ideas," he said. "We prejudge nothing."

In February, the IG's office issued a report on an earlier investigation into the work and scientific methods used by the fisheries service. That investigation, too, was requested by Sen. Kennedy.

Zinser's report concluded that the science used as the basis of regulatory actions, while less than ideal, was generally the best available. But the IG also found that the industry had an "underlying lack of confidence in NOAA that continues to erode confidence in ... fishery management and science."

The IG noted that little had changed since a 1998 review by the National Research Council which found a "lack of participation" by the industry in the "management process."

"Our investigation ultimately turned its focus on what NOAA is doing and can do to improve its relationship with the groundfish industry," Zinser wrote in February.

Lee, who found himself in the informal position of industry ombudsman and its emissary to NOAA, drove to NOAA headquarters in Silver Spring, Md., in the spring to meet with Dale Jones, the director of law enforcement, and appeal for detente.

He noted that many of the citations in the auction cases turned on the so-called yellowtail letter, an add-on requirement for fishermen that was introduced with little notice and required of each boat landing yellowtail flounder.

Lee himself had been cited for failing to have a yellowtail letter. Earlier, he'd been written up by the Coast Guard for having yellowtail without a letter; he was also cited for having illegally filleted a mangled dab.

The Coast Guard later rescinded both citations. But Lee was charged with a major violation by NOAA in the web of cases surrounding the auction.

He and many other fishermen told the Times they were offered reduced or dropped charges for "ratting out" the auction.

In his meeting with Jones, a former Hagerstown, Md., police chief, Lee said he described the yellowtail letter as a "black eye" for the service and wondered why NOAA took no responsibility for the poor communications to the fleet.

Jones never responded to Lee or return calls from the Times.

Excitement about the arrival of the IG's team was palpable yesterday.

"I would personally travel to China if that's what it would take to meet with these folks," former fisherman Greg Duckworth of Rhode Island, told a colleague in New York. Duckworth's fishing career for now at least is at an end, due to an escalating chain of charges that began with a $37,500 penalty for relatively routine violations and spiraled upward until his permits were canceled and the fines totaled $910,000.

"If they had put me on a reasonable payment plan rather than canceling my permits," he said in the e-mail, "I would not have been in violation of anything."

Richard Gaines can be reached at rgaines@gloucestertimes.com.