[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]


 
  WILL NOAA'S NEW LEADERSHIP ADDRESS SERIOUS PROBLEMS IN FISHERY LAW 
                              ENFORCEMENT? 

=======================================================================

                                HEARING

                               before the

                    SUBCOMMITTEE ON DOMESTIC POLICY

                                 of the

                         COMMITTEE ON OVERSIGHT
                         AND GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                               __________

                             MARCH 2, 2010

                               __________

                           Serial No. 111-135

                               __________

Printed for the use of the Committee on Oversight and Government Reform


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              COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

                   EDOLPHUS TOWNS, New York, Chairman
PAUL E. KANJORSKI, Pennsylvania      DARRELL E. ISSA, California
CAROLYN B. MALONEY, New York         DAN BURTON, Indiana
ELIJAH E. CUMMINGS, Maryland         JOHN L. MICA, Florida
DENNIS J. KUCINICH, Ohio             MARK E. SOUDER, Indiana
JOHN F. TIERNEY, Massachusetts       JOHN J. DUNCAN, Jr., Tennessee
WM. LACY CLAY, Missouri              MICHAEL R. TURNER, Ohio
DIANE E. WATSON, California          LYNN A. WESTMORELAND, Georgia
STEPHEN F. LYNCH, Massachusetts      PATRICK T. McHENRY, North Carolina
JIM COOPER, Tennessee                BRIAN P. BILBRAY, California
GERALD E. CONNOLLY, Virginia         JIM JORDAN, Ohio
MIKE QUIGLEY, Illinois               JEFF FLAKE, Arizona
MARCY KAPTUR, Ohio                   JEFF FORTENBERRY, Nebraska
ELEANOR HOLMES NORTON, District of   JASON CHAFFETZ, Utah
    Columbia                         AARON SCHOCK, Illinois
PATRICK J. KENNEDY, Rhode Island     BLAINE LUETKEMEYER, Missouri
DANNY K. DAVIS, Illinois             ANH ``JOSEPH'' CAO, Louisiana
CHRIS VAN HOLLEN, Maryland
HENRY CUELLAR, Texas
PAUL W. HODES, New Hampshire
CHRISTOPHER S. MURPHY, Connecticut
PETER WELCH, Vermont
BILL FOSTER, Illinois
JACKIE SPEIER, California
STEVE DRIEHAUS, Ohio
JUDY CHU, California

                      Ron Stroman, Staff Director
                Michael McCarthy, Deputy Staff Director
                      Carla Hultberg, Chief Clerk
                  Larry Brady, Minority Staff Director

                    Subcommittee on Domestic Policy

                   DENNIS J. KUCINICH, Ohio, Chairman
ELIJAH E. CUMMINGS, Maryland         JIM JORDAN, Ohio
JOHN F. TIERNEY, Massachusetts       MARK E. SOUDER, Indiana
DIANE E. WATSON, California          DAN BURTON, Indiana
JIM COOPER, Tennessee                MICHAEL R. TURNER, Ohio
PATRICK J. KENNEDY, Rhode Island     JEFF FORTENBERRY, Nebraska
PETER WELCH, Vermont                 AARON SCHOCK, Illinois
BILL FOSTER, Illinois
MARCY KAPTUR, Ohio
                    Jaron R. Bourke, Staff Director






















                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on March 2, 2010....................................     1
Statement of:
    Ouellette, Stephen, attorney; Richard Burgess, Gloucester-
      based fisherman; and Jim Kendall, New Bedford Seafood 
      Consulting, former scallop fisherman, former New England 
      Fishery Council member.....................................    50
        Burgess, Richard.........................................    75
        Kendall, Jim.............................................    83
        Ouellette, Stephen.......................................    50
    Zinser, Todd, Inspector General, Department of Commerce, 
      Office of Inspector General; Jane Lubchenco, Ph.D., Under 
      Secretary of Commerce for Oceans and Atmosphere, 
      Administrator, National Oceanic and Atmospheric 
      Administration; and Dale Jones, Director, Office for Law 
      Enforcement, National Oceanic and Atmospheric 
      Administration Fisheries Service...........................    13
        Jones, Dale..............................................    32
        Lubchenco, Jane..........................................    25
        Zinser, Todd.............................................    13
Letters, statements, etc., submitted for the record by:
    Burgess, Richard, Gloucester-based fisherman, prepared 
      statement of...............................................    77
    Kendall, Jim, New Bedford Seafood Consulting, former scallop 
      fisherman, former New England Fishery Council member, 
      prepared statement of......................................    85
    Kucinich, Hon. Dennis J., a Representative in Congress from 
      the State of Ohio, prepared statement of...................     4
    Lubchenco, Jane, Ph.D., Under Secretary of Commerce for 
      Oceans and Atmosphere, Administrator, National Oceanic and 
      Atmospheric Administration, prepared statement of..........    27
    Ouellette, Stephen, attorney, prepared statement of..........    53
    Zinser, Todd, Inspector General, Department of Commerce, 
      Office of Inspector General, prepared statement of.........    16


  WILL NOAA'S NEW LEADERSHIP ADDRESS SERIOUS PROBLEMS IN FISHERY LAW 
                              ENFORCEMENT?

                              ----------                              


                         TUESDAY, MARCH 2, 2010

                  House of Representatives,
                   Subcommittee on Domestic Policy,
              Committee on Oversight and Government Reform,
                                                    Gloucester, MA.
    The subcommittee met, pursuant to notice, at 11:20 a.m., at 
the Kyrouz Auditorium, Gloucester City Hall, 9 Dale Avenue, 
Gloucester, MA, Hon. Dennis J. Kucinich (chairman of the 
subcommittee) presiding.
    Present: Representatives Kucinich and Tierney.
    Also present: Representative Frank.
    Staff present: Jaron R. Bourke, staff director.
    Ms. Kirk. Good morning. I would like to ask everyone to 
take their seats, please. Thank you.
    Mr. Chairman, Congressman Tierney, Congressman Frank, all 
of our guests here from Washington, I want to thank you and 
welcome you to the city of Gloucester.
    Thank you for convening and participating in this important 
hearing. I also want to recognize our state senator who is 
here, Bruce Tarr, and our state representative, Ann-Margaret 
Ferrante. We also have representatives here from Senator 
Kerry's office and Senator Scott Brown's office, as well. And a 
special thank you and welcome to former Mayor John Bell, who is 
with us, as well.
    I wanted to sort of give you a sense of where you are, and 
you are in Gloucester, which is America's oldest fishing port 
in the Nation. For 400 years, we have supplied a hungry nation 
with fresh, wholesome fish. Gloucester is the No. 1 ground fish 
port in New England, and we are 10th in the Nation in fish 
landings. In addition, we are the port infrastructure for the 
vast majority for the Gulf of Maine.
    Before you leave here today, I would ask you to just 
venture up to our third floor to observe and remember the 5,000 
names of Gloucester fisherman who have gone down to the sea in 
ships. Their names are listed on the walls of our city hall and 
are in our memory.
    I especially want to thank Congressman Tierney. Gloucester 
is resilient and it is through your efforts and the efforts of 
so many others that Gloucester will continue to fish for 
another 400 years.
    Thank you.
    [Applause.]
    Mr. Tierney. Thank you.
    Mr. Kucinich. Domestic Policy Subcommittee of the House 
Oversight and Government Reform Committee will now come to 
order.
    I'm Congressman Dennis Kucinich, chairman of the 
subcommittee, and I'm here with Congressman Tierney and 
Congressman Frank.
    Congressman Tierney asked me a few weeks ago if I would 
come to Gloucester and I'm happy to be here. I have had a deep 
and abiding interest in New England and, of course, coming from 
Cleveland, where we have an active fishing industry in Lake 
Erie, I understand the importance of this industry to your 
state and to the Nation.
    The purpose of this field hearing is to examine problems in 
the National Oceanic and Atmospheric Administration's Office 
for Law Enforcement identified by the Department of Commerce 
Office of the Inspector General and to hear NOAA's agency 
response to those findings.
    Now, without objection, the Chair and other Members will 
have 2 minutes to make opening statements followed by opening 
statements not to exceed 2 minutes by any other Member that may 
join us, and without objection Members and witnesses will have 
5 legislative days to submit a written statement or extraneous 
materials for the record.
    Today's field hearing of the Domestic Policy Subcommittee 
of the House Oversight and Government Reform Committee concerns 
serious and persistent problems in fishery law enforcement in 
the Northeast Region.
    Gloucester fishermen have for years felt that they were 
being treated as criminals by the Office for Law Enforcement of 
the National Marine Fisheries Service. They felt that the fines 
they paid were unfairly harsh. And they felt a deep mistrust of 
Federal law enforcement officers.
    They were right. This January, at the request of the NOAA's 
Administrator, Dr. Jane Lubchenco, responding to the request of 
my colleague, Congressman Tierney and others, the Inspector 
General for the Department of Commerce issued a scathing report 
which found, among other things, NOAA management, concerned 
primarily with managing a science-based agency, does not 
exercise adequate leadership or oversight over the fishery law 
enforcement elements of its mission.
    By virtue of staffing and practices, Office of Law 
Enforcement, that's the OLE, conducts itself as a criminal 
investigation unit, which is at variance with the primary 
statute it enforces and blurs the distinction between 
regulatory enforcement matters and criminal investigations.
    Compared to other Federal national resource law enforcement 
agencies, OLE's emphasis on employing criminal investigative 
techniques and personnel to regulatory law enforcement matters 
is aberrant.
    The Inspector General found that penalties assessed in the 
Northeast region are comparatively harsh. The Inspector General 
also discovered that NOAA management does not apply customary 
internal controls and auditing practices to the Civil Asset 
Forfeiture Fund. As a result, the Office of the Inspector 
General could not draw any conclusions about how those funds 
were managed, and it commissioned a forensic audit of the fund, 
which will be published later in March.
    Last, the Inspector General is continuing its investigation 
with respect to allegations of abuses or arbitrary enforcement 
practices in certain individual cases.
    Dr. Lubchenco responded to the IG's findings with an 
extensive list of immediate and longer term actions. Later this 
month the recently appointed general counsel for NOAA will 
issue her plan for comprehensive reform at the troubled agency.
    Clearly, profound changes will have to be made to correct 
the problems identified by the Inspector General. Those 
problems originated with OLE and NOAA top management. They have 
been festering a long time. New top management at NOAA offers a 
chance at reform, and we felt we had to hear from Dr. Lubchenco 
herself about the direction she's charting.
    We also felt it was important that the chief of the Office 
of Law Enforcement testify and answer questions about his 
leadership. Judging by the comments that we have seen from 
fishermen and OLE employees alike, Mr. Jones has much 
explaining to do and bears much of the responsibility for the 
problems at OLE identified by the Inspector General.
    I also want to note that today's hearing and this 
subcommittee's engagement in this issue is due to the advocacy 
of Congressman Tierney, and I thank him for his advocacy and 
also for the urgency that he expressed in bringing this matter 
forward.
    At this time, the Chair will recognize Mr. Tierney for his 
opening statement.
    [The prepared statement of Hon. Dennis J. Kucinich 
follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Mr. Tierney. Thank you very much, Mr. Chairman, and I want 
to thank the mayor particularly for her opening remarks in 
welcoming us here, as well as the other elected leadership that 
are here, Senator Tarr, Representative Ferrante, former Mayor 
John Bell, and so much of the leadership of the fishing 
community and the business and citizenry of this area, this 
community, who thinks this is a very serious matter.
    I'm particularly pleased to be joined by my colleague, 
Barney Frank, who has been a leader on this issue for many, 
many years, and I want to thank the chairman for holding the 
hearing and holding what I believe is the first congressional 
hearing on the issues raised in the Inspector General's report, 
which is entitled Review of NOAA Fisheries Enforcement Programs 
and Operations. And I want to thank you for convening it in 
Gloucester. I know it was at some inconvenience to you and 
others; but as Mayor Kirk indicated in her opening remarks, and 
as those in the audience know well, it's only appropriate that 
the hearing take place right here in Gloucester which has been 
renowned for the fishing community since its founding in 1623. 
We are very proud of that.
    Generations of local residents have earned a living and 
provided for their families through their catches from the sea, 
and last week we had the opportunity in Washington to meet with 
a number of fishermen and their families who visited as part of 
the United Fish Rally. I think that was an excellent gathering 
of people that really focused on this issue.
    During that meeting I had occasion to talk with a young 
teenager who was accompanying his mother and he told me about 
the kinds of fish his mom and dad were catching, the challenges 
they were facing, and how he sometimes went out to sea with 
them. He knew what he was talking about. He was knowledgeable 
and he spoke with pride. But the little anecdote evidences 
what's true in so many cases, that fishing is a family business 
in this city and in the Northeast.
    One of the reasons we advocated for this hearing to occur 
here in Gloucester, Mr. Chairman, was so that you and the other 
Washington-based agency officials could come to the city and 
see and listen to what the fishing industry means to its 
residents.
    I'm happy that Administrator Lubchenco finally made the 
opportunity this morning to meet with representative groups 
from the Gloucester fishing community. I know it was an 
inconvenience for her and I know it took some pressing to get 
you to come here, Doctor, and the same with Mr. Jones, but we 
think it's valuable that you be here and we are glad that you 
showed up and took advantage of getting here a little early 
this morning to speak directly to some of the folks.
    Let me also say that this family business is a very big 
deal. Of all the New England states, the commercial fishing 
industry had one of the highest sales, income, and employment 
impacts in Massachusetts according to data published by NOAA. 
But the fishing community in Gloucester and elsewhere in 
Massachusetts continues to confront frequent hurdles and 
significant hardships. They have been increasingly burdened 
with complex and seemingly unrealistic regulations limiting 
their access and restricting their days at sea.
    The Magnuson-Stevens Act should be amended to provide more 
flexibility. We acknowledge Representative Frank Pallone's 
legislation and many of us co-sponsored that.We acknowledge his 
leadership, as well.
    On top of this, my colleagues and I have been hearing now 
from local fisherman about how they have been subjected to 
unfair treatment, cited for seemingly arbitrary violations and 
charged exorbitant fines. That's why we asked the Administrator 
to investigate and that's why she asked the Inspector General 
for a report.
    The stories have been told from many years past and were 
told in Washington at the rally and they were told this 
morning, I'm sure, to the Administrator. The Inspector 
General's report just confirms. It notes that there are 
systemic nationwide issues with NOAA's law enforcement 
programs, practices, and personnel.
    Among other things, this report cited NOAA's Office of 
General Counsel for Enforcement and Litigation. The data for 
the dates between July 2004 and June 2009 showed that in the 
Northeast region the initial fine assessments totaled nearly 
$5.5 million. That's two and a half times greater than the 
second highest region and five times or more than the other 
four regions.
    Additionally, the date shows that Northeast is the region 
with the greatest percentage reduction from assessed-to-settled 
fine amounts, approximately 5.35 million assessed to 
approximately 1.6 million settled, which is about a 70 percent 
reduction.
    There is a lack of oversight and enforcement by NOAA. The 
questions of fairness and consistency abound. The program 
integrity and accountability are in question, and at the very 
least an appearance of abuse of authority exists.
    A further concern is that NOAA currently retains proceeds 
from these excessive penalties. It is very troublesome that 
there is inadequate auditing of this money, which is deposited 
into the Asset Forfeiture Fund. By the Inspector General's 
count, there was $8.4 million in this fund at the end of 2009.
    We should question whether allowing the agency to keep 
those collected penalties provides some sort of perverse 
incentive for officials to levy excessive fines.
    Today's hearing offers us the opportunity to hear from 
three key senior officials: Dr. Lubchenco, the Administrator of 
NOAA; Mr. Zinser, the Department of Commerce's Inspector 
General; and Mr. Jones, the Director of NOAA's Office of Law 
Enforcement.
    Mr. Jones has been aware of these issues for some time. 
Many of us can recall visiting with Mr. Hogarth and with him in 
Washington, DC, in 2006. I remember his promise to visit and 
consult with local fishermen, and I remember that he didn't do 
so, and that the next thing we heard the auction was raided. 
The hearing is also an opportunity to carefully scrutinize what 
has been happening and to get a better understanding of the 
conduct of certain NOAA personnel.
    But this hearing is not solely intended to be a 
retrospective or to exercise blame. It's not what the committee 
is about. It's not what this fishing community is about at all. 
The fishing community here wants to end any and all abuse of 
authority and mistreatment. They want meaningful action and 
real change with NOAA's enforcement and legal operations. They 
want more reasonable, flexible, and transparent regulations and 
rules.
    The Inspector General noted clearly that this is not a 
situation where fisherman reject all regulation. More than 
anyone, they understand the need to preserve and conserve. So 
as the Inspector General said, the numerous individuals with 
whom they spoke supported regulation and enforcement provided 
it is fair, equitable, and not onerous.
    That's why this hearing is an opportunity to learn about 
the immediate and long-term actions that Dr. Lubchenco proposed 
in response to the report. It's also an opportunity to hear 
from Mr. Zinser on whether such actions sufficiently address 
the problems identified in his report. And if not, what other 
reforms are necessary as well as the Inspector General's report 
on what he will do with continuing the scrutiny of past 
specific conduct and enforcement and reports of those 
particulars.
    From this hearing my colleagues and I hope to learn what, 
if any, further congressional action is warranted to ensure 
that our fishing community is treated fairly and with the 
respect it deserves. I'm looking toward to the testimony of the 
witnesses.
    And again, Mr. Chairman, I thank you very much for joining 
us in Gloucester and having this hearing. I yield back my time.
    Mr. Kucinich. Thank you, Mr. Tierney.
    The Chair recognizes Congressman Frank.
    Mr. Frank. Mr. Chairman, I appreciate your letting me sit 
as a member of this panel since I'm not a member of this 
committee, although I used to be. But I used to be a lot of 
things.
    I wanted to say that the work of my colleague, Mr. Tierney, 
in this particular action and in general has been congressional 
representation at its best. And I'm also pleased that we are 
here with state, local, and Federal cooperation of all elected 
officials. Too often you get finger-pointing. And having the 
mayor and having the state legislators and having the 
Congressmen here is an example of a community coming together.
    There is a fundamental problem here. It is not just the 
specifics. It is an attitude that looks at fishing violations 
as if they were crimes. Yes, there are occasional crimes. There 
are a very, very small number of people who set out 
deliberately to violate the law. The great majority of people 
who are caught up in this net of enforcement are among the 
hardest working people in this country. They are doing a very 
important job for the economy. They are doing it in very 
difficult circumstances with a great deal of complexity.
    People who drive know that there are lines painted on the 
road. They are not painted in the ocean. People who haven't 
fished don't have a sense of the inherent uncertainty that is 
out there. And for people who have been treated as punitively 
as the fishermen have been treated is simply wrong.
    Now, one of the problems, we are told, is that there is an 
overload of criminal enforcement agents in the area and not 
enough elsewhere. Now, I don't want to put anybody out of work, 
so I have a solution here, take some of these people who have 
been doing this tough law enforcement and send them to the 
Securities and Exchange Commission. We have underenforced in 
one area and overenforced in another.
    [Applause.]
    Mr. Frank. I want to address a workout. Part of the 
government's responsibility--Mr. Tierney and I voted against 
the extension of the Magnuson Act done by the lame duck 
Congress in 2006. After the 2006 election, before control of 
the Congress switched, the lame duck Congress passed that. It 
was signed into law. We voted against it.
    In particular, I have never been a fan of magic numbers and 
the notion that there absolutely has to be a rebuilding to a 
certain level in 10 years rather than in some cases 11 or 12. 
It makes no public policy sense. That is truly voodoo 
regulation to take a particular number and overfixate on it.
    I want to say a word to my environmental friends. The 
notion that the business of fishing has to be protected from 
fishermen is wrong. They are working environmentalists. I do 
not know many fishermen who hope to be the last people ever to 
fish. They are people who believe in fishing as an economic 
activity and as a culture. It's simply very important to the 
area that I represent in Southeastern Massachusetts, New 
Bedford, and elsewhere, as it is here. It isn't just the 
fishermen who care. It's the whole community because it's the 
economy and the culture.
    The notion that fishermen would put themselves out of 
business, put their children out of business, and end fisheries 
is wrong. Yes, there needs to be rules, and we have the most 
regulated activity, I believe, around. But there needs to be a 
recognition that the fisherman want to be partners of the 
regulations. The way it is from a law enforcement standpoint, 
there aren't enough law enforcement people in the world to 
impose on people who think it is unfair this kind of 
restriction. So if we do not get a better job of eliciting a 
belief on the part of the fishermen that this is fair, and that 
this is reasonable, and it takes into account the complexities 
they face, then we will be chasing ourselves with punitive 
enforcement that in the end is less enforcement than we can get 
in a cooperative area.
    I appreciate the Administrator's being here. It 
is our job in the Congress to change the Magnuson Act, to put 
some flexibility in there, and we will be doing that, but we 
also have to have a recognition that we are talking here about 
putting rules into place that govern an industry that is full 
of people who are law-abiding, who want to cooperate, and the 
approach that has been taken, and I admire the work in getting 
it done.
    We now have irrefutable evidence that there has been 
excessive, inappropriate hardship. That's got to stop; and at 
the same time we will be amending the law, and I would hope 
going forward we will get the genuine cooperative approach to 
law enforcement that's in everybody's interest.
    Thank you, Mr. Chairman.
    [Applause.]
    Mr. Kucinich. Thank you very much, Congressman Frank. As 
Mr. Frank said, he is not a member of this committee and 
without objection, his participation; and questioning and 
statements are included.
    Mr. Frank. Let me make clear, objections are only in order 
from the three of us, not from everybody else.
    Mr. Kucinich. I also want to say that in the interest of 
trying to facilitate a hearing so we can get the testimony from 
the witnesses, I would ask that members of the audience try to 
keep the expressions of approval or disapproval to a minimum, 
if you can. I would appreciate that so we could just move 
forward here.
    I want to, if there are no additional statements, I'm going 
to start by introducing our witnesses.
    Mr. Todd Zinser is the Inspector General of the Department 
of Commerce's Office of the Inspector General where he is 
responsible for promoting economy and efficiency in the 
programs in the operation of the Department of Commerce. He has 
served as Inspector General since December 26, 2007, after 24 
years as a career civil servant beginning as an investigator 
for the U.S. Department of Labor in 1983.
    Dr. Jane Lubchenco is Under Secretary for Commerce for 
Oceans and Atmosphere, Administrator at the National Oceanic 
and Atmospheric Administration. She is the first woman and the 
first marine ecologist to head NOAA. Prior to being appointed 
as Administrator, she was on the faculty of Oregon State 
University. She is a former president of the International 
Council for Science, and was a Presidential appointee for two 
terms on the National Science Board. And this is the board 
which advises the president and Congress and oversees the 
National Science Foundation.
    Mr. Dale Jones has directed since 1999 the Office for Law 
Enforcement of the National Oceanic and Atmospheric 
Administration Fishery Service. In his capacity, Chief Jones 
oversees five regional offices consisting of 100 special agents 
and 35 uniformed enforcement officers, as well as 31 technical 
and support staff.
    It is the policy of the Committee on Oversight and 
Government Reform to swear in all witnesses before they 
testify.
    I would ask that the witnesses rise. Raise your right 
hands, please.
    [Witnesses sworn.]
    Mr. Kucinich. Thank you very much. Let the record reflect 
that each of the witnesses answered in the affirmative.
    I ask that each of the witnesses now give a brief summary 
of your testimony and to try to keep this summary under 5 
minutes in duration. Bear in mind your complete written 
statement will be included in the hearing record. If you don't 
have a prepared written statement, you are entitled to address 
the committee for 5 minutes and you can just follow the lights 
there. You probably understand how it works.
    Mr. Zinser, you will be our first witness. We ask that you 
proceed.

  STATEMENTS OF TODD ZINSER, INSPECTOR GENERAL, DEPARTMENT OF 
 COMMERCE, OFFICE OF INSPECTOR GENERAL; JANE LUBCHENCO, PH.D., 
    UNDER SECRETARY OF COMMERCE FOR OCEANS AND ATMOSPHERE, 
ADMINISTRATOR, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION; 
AND DALE JONES, DIRECTOR, OFFICE FOR LAW ENFORCEMENT, NATIONAL 
    OCEANIC AND ATMOSPHERIC ADMINISTRATION FISHERIES SERVICE

                    STATEMENT OF TODD ZINSER

    Mr. Zinser. Thank you, Chairman Kucinich, Congressman 
Tierney, Congressman Frank----
    Mr. Kucinich. Can everyone hear Mr. Zinser?
    Voice. Slightly.
    Mr. Zinser. We appreciate the invitation to be here in 
Gloucester today to discuss our recent report on the fisheries 
enforcement programs and operations of NOAA. My testimony today 
will briefly summarize our report.
    We undertook our review at the request of Under Secretary 
Lubchenco. The Under Secretary's request was in response to 
congressional inquiries asking for a review of policies of 
practices of the Office for Law Enforcement within NOAA's 
National Marine Fishery Service and NOAA's Office of General 
Counsel for Enforcement in Litigation.
    The Under Secretary could have chosen to undertake this 
review using an informal NOAA team, but she chose to ask for 
our independent review. It was my view then and it is still my 
view that the Under Secretary wants to know what the problems 
are with her enforcement operations and wants to fix them.
    Our review included speaking with over 225 individuals in 
various parts of the country, including fishermen, boat 
captains, industry association representatives, conservation 
officials, fishery management counsel members, and current and 
former member NOAA personnel. We reviewed enforcement records 
and examined NOAA's management information systems. We reviewed 
Department of Justice policy guidelines and analyzed comparable 
Federal regulatory enforcement agencies.
    Our report details our three principal findings. First, 
NOAA senior leadership and headquarters elements need to 
exercise substantially greater management and oversight of the 
agency's regional enforcement operations to include setting 
enforcement priorities.
    Second, NOAA needs to strengthen policy guidance procedures 
and internal controls in its enforcement operations to address 
a common industry perception that its civil penalty assessment 
process is arbitrary and unfair. We found the process used for 
determining civil penalty assessments includes significant 
discretion on the part of individual enforcement attorneys, 
with minimal guidance on how to exercise that discretion. As 
such, it is difficult to argue with the view that the process 
is arbitrary and in need of reform.
    Third, NOAA needs to reassess its enforcement work force 
composition, which is presently 90 criminal investigators, to 
determine if this criminal enforcement-oriented structure is 
the most effective for accomplishing its primary regulatory 
mission. Based on NOAA's own data, its own enforcement results 
for the last 2\1/2\ years were about 98 percent noncriminal.
    While we recognize NOAA's need to maintain a criminal 
investigative capacity, its caseload reflects that its current 
staffing is disproportionate to agency function and operational 
needs. This is particularly so compared with other agencies 
with similar mission profiles and enforcement responsibilities, 
such as the EPA and Interior Fish and Wildlife Service. Those 
agencies separate their regulatory and criminal enforcement 
functions with inspectors who handle regulatory enforcement and 
criminal investigations who handle criminal investigations.
    Our report presents specific recommendations for NOAA to 
strengthen its enforcement programs and operations. These 
include, one, NOAA's leadership regularly addressing and 
providing input or enforcement priorities and strategies with 
regional management.
    Two, instituting a robust ombudsman program to provide an 
effective interface with the commercial fishing industry.
    Three, determining whether NOAA has an appropriate balance 
and alignment of uniformed enforcement officers and criminal 
investigators based on mission need.
    Four, ensuring that there is an operating procedures manual 
for enforcement attorneys and that the operations manual for 
its investigators is current and provides sufficient policy 
guidance and procedures for its investigatory and criminal 
enforcement activities.
    Five, ensuring follow-through on the process improvement 
initiatives outlined by general counsel for enforcement and 
litigation in December.
    Six, instituting a mechanism for higher-level review of 
civil penalty assessment determinations.
    And seven, developing and implementing reliable integrated 
case management information system for its enforcement mission.
    We note----
    Voice. Can somebody do something about the mic?
    Mr. Zinser. We note that the Under Secretary has directed a 
series of----
    Mr. Kucinich. The gentleman will suspend.
    That's a good suggestion. Is there anything we can do about 
this, Mayor? You always ask the mayor. Mayor, if you can see if 
we can do something about the mic.
    Thank you. The gentleman may proceed.
    Ms. Kirk. If he puts it to the side rather than going right 
on, if he puts it on side. It's the P sound. Try that.
    Mr. Kucinich. We will see what we can do. Thank you. You 
may continue.
    Mr. Zinser. Thank you, Mr. Chairman.
    We note that the Under Secretary has directed a series of 
actions, some immediate and others in the near future, that are 
responsive to our findings and recommendations. We have asked 
for a specific response to our recommendations and will assess 
NOAA's progress by reviewing and recording on the status of 
these and other agency actions.
    That concludes my summary, Mr. Chairman. I would be happy 
to answer any questions you, Mr. Tierney, or Congressman Frank 
may have.
    [The prepared statement of Mr. Zinser follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Kucinich. I thank the gentleman.
    Dr. Lubchenco, you may proceed.

                  STATEMENT OF JANE LUBCHENCO

    Ms. Lubchenco. Thank you, Mr. Chairman, Congressman 
Tierney, Congressman Frank. I would greatly appreciate the 
opportunity to testify before you today on the recent Inspector 
General report.
    NOAA, fishermen, and the public share a common goal of 
preserving and protecting the marine environment and our 
fisheries for the long-term health of both our fishery 
resources and fishing-dependent communities. Proper regulation 
and enforcement are vital to this effort and to the economic 
vitality of our coastal communities. For all of this to work, 
commercial and recreational fishermen must know the rules and 
thus believe that if they follow the rules, others will do so, 
too. But these rules must be consistently and fairly enforced. 
NOAA is committed to improving its enforcement program to 
ensure that it is both effective and fair.
    I just spent a few hours this morning meeting with 
fishermen here in Gloucester. Doing so is part of my commitment 
to have an open, productive dialog with them and to 
understanding their perspectives, to hear their ideas about 
solutions and to work with them as partners.
    In fact, I met with fishermen on my first full day on the 
job last March, almost a year ago, and heard, among other 
things, their frustration with NOAA's law enforcement.
    A couple of months later I heard concerns from Members of 
Congress, including from Congressmen Tierney and Frank about 
NOAA's enforcement program. And in response, I requested the 
Department of Commerce's Inspector General conduct a review of 
these programs.
    I requested this review because I believe in the importance 
of NOAA's law enforcement efforts and felt it was time to take 
a fresh look at how well NOAA's enforcement efforts are 
supporting our mission to rebuild fisheries and the associated 
economic opportunity within coastal and fishing communities.
    The IG report released on January 21 identifies a number of 
very serious issues with NOAA's law enforcement program and 
recommends several steps we should take to address the 
deficiencies. I was frankly appalled to learn of the many 
fundamental problems identified in the report. I take the 
report very seriously and I'm committed to responding in a 
comprehensive, thoughtful, and timely manner.
    To respond to the IG report, I have instructed the new NOAA 
General Counsel, Lois Schiffer, and the new National Marine 
Fishery Service Assistant Administrator, Eric Schwaab, who is 
with us here today, to address the IG's recommendations and 
continue to work to improve our outreach and engagement with 
the fishing community at large.
    While we develop a comprehensive plan to address the 
report's recommendations in the allotted 60-day timeframe, we 
have already taken a number of actions in response to the IG 
report. My written testimony is more thorough, but let me 
briefly outline some of the changes that have already taken 
place and talk about some of the longer term actions we are 
planning.
    In terms of immediate action, first, I have instituted a 
freeze on the hiring of criminal investigations until an 
internal work force analysis is done to address the appropriate 
mix of criminal investigators and regulatory inspectors in the 
enforcement office. This action would better position the 
agency to address the report's observation that the Office of 
Law Enforcement may not have the appropriate balance in its 
work force.
    Second, I have shifted oversight of the Asset Forfeiture 
Fund from NOAA's National Marine Fishery Service to NOAA's 
comptroller. This immediate step will begin to address the IG's 
criticism that internal controls over this fund are lacking. We 
are actively working with IG to conduct a forensic audit on 
this fund and will further review this issue once we have the 
results of that audit.
    Third, I have asked the general counsel, and she has 
committed to institute higher level reviews for penalties, 
permit sanctions, and settlements to ensure consistency and 
predictability. This addresses the report's observation that 
NOAA lacks formal procedures for sufficiently documenting 
penalty decision resulting in the appearance of arbitrary 
decisionmaking.
    Other actions I would like to highlight that fall into the 
category of improved communication and enhanced oversight, 
which are the major themes of the IG report, No. 1, we are 
planning a number of actions to improve communications and 
increase transparency. A top level management team is 
developing detailed plans for a summit on law enforcement 
practices to be held no later than June 30th this year. This 
summit will help us formulate long-range policies for properly 
and fairly executing the agency's enforcement action and 
develop forward-thinking approaches to enforcement efforts.
    We are also well on our way to implementing much needed 
improvements in our management information systems. This effort 
is intended to address current system inefficiencies and data 
integrity issues. The improvements will enable NOAA to more 
effectively use information to guide its decisionmaking and 
increase transparency.
    Two, the IG's report identified lack of oversight in 
several aspects of our enforcement programs. To address this, 
we are working on several initiatives including develop 
standardized procedures for settlement enforcement priorities. 
We are also strengthening the operating procedure for our 
enforcement attorneys. These steps are intended to begin to 
respond to the issues identified by the IG. NOAA will buildupon 
these steps to respond to all of the IG's recommendation and to 
improve our enforcement programs.
    Our marine and costal resources are of immense value to the 
Nation. Effective, fair, and transparent enforcement is 
critical to ensuring the long-term sustainability of these 
resources. I echo the sense of urgency for change and I commit 
to serious, measurable reforms to address the IG's 
recommendations and enhance our work with the fishing industry.
    In conclusion, the problems identified in the IG report do 
not originate on my watch, but now I own them and I intend to 
fix them.
    [The prepared statement of Ms. Lubchenco follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Kucinich. Thank you, Dr. Lubchenco.
    The Chair recognizes Mr. Jones for 5 minutes.

                    STATEMENT OF DALE JONES

    Mr. Jones. Good morning, Chair, Congressman Tierney, 
Congressman Frank. Thank you for your invitation and 
opportunity to testify before you today.
    The NOAA Office of Law Enforcement is dedicated to ensuring 
the professional and responsible enforcement of our nation's 
fisheries and marine resource-related laws. We recognize that 
in meeting those missions to facilitate commercial fishing and 
the mandate to conserve stocks and ensure sustainability, it is 
critical that we reconcile the conflicts that are inherent.
    As you know, our biggest area of responsibility is the 
enforcement of the regulations that are created to manage 
domestic commercial fishing. Our role also involves the 
enforcement of matters involving recreational fishing, the 
protection of marine mammals, endangered species, and 
sanctuaries, as well as matters pertaining to international 
fisheries enforcement.
    As the Director of the Office of Law Enforcement, my role 
is to assure that we identify and document violations of the 
laws and regulations enacted within these mission areas and to 
refer information on violations documented to the appropriate 
prosecutors for further action.
    We also work collaboratively with others to enhance 
compliance and outreach in education efforts. Our ongoing 
challenge is to meld these extensive mission requirements into 
an enforcement premise and approach that allows us to cover a 
vast geographic jurisdiction with limited numbers of personnel.
    We are, therefore, working closely and responsibly with Dr. 
Lubchenco and NOAA leadership to determine the most effective 
and appropriate actions to take in light of the Inspector 
General's report. We will work within the scope of Dr. 
Lubchenco's direction to ensure we are responsive to the report 
and, if necessary, any required changes to our enforcement 
approach.
    Thank you.
    Mr. Tierney. Mr. Chairman, I understand that we are going 
to have several rounds of questioning and I think we all have 
questions for each of these witness.
    Mr. Kucinich. I'm going to recognize Mr. Tierney for the 
first 5 minutes, and then I will recognize Mr. Frank, and then 
I will go last in the first round. We will take as many rounds 
as we need.
    Mr. Tierney. Thank you.
    Mr. Zinser, thank you for your report. We appreciate it, 
and I think it's been helpful as we look at these issues. You 
mentioned in your report to the Administrator that there were 
expectations that your office would further investigate 
individual offices, that you didn't feel it was possible for 
you to do that simultaneously with your broader view of what 
was going on nationally in law enforcement on that. You said 
you would followup. So my question to you is: When can we 
expect a report on that followup?
    Mr. Zinser. Thank you, Mr. Tierney. Our followup efforts 
are, we identified three followup efforts in our report. One 
was to do the forensic review on the Asset Forfeiture Fund. 
That is underway. And we do expect something back from the 
audit team there probably within 30 or 45 days.
    Mr. Tierney. I ask if you angle your mic like that so you 
are not necessarily speaking right into it.
    Mr. Zinser. OK.
    Mr. Frank. Make sure you do not speak straightforwardly.
    Mr. Zinser. So the Asset Forfeiture audit is underway and 
we do expect some results from that within 30 to 45 days.
    The other thing that we committed to was following up on 
the actions that NOAA is taking. Based on my experience in the 
Inspector General community, you can make all the 
recommendations that you want, but if you don't follow through 
and make sure that the agency follows through themselves, 
nothing may happen. So we are committed to sticking with this 
issue.
    The third issue is to try to identify and get to the bottom 
of some of the individual complaints that we heard as we went 
around and spoke to members of the fishing community about the 
way they have been treated, either by the law enforcement 
agents or the attorneys themselves, and it really falls into 
this category of how the NOAA officials exercise their 
discretion. We've identified between 20 and 25 such cases. We 
are in the process, and while it's difficult for me to pinpoint 
a day when we are going to be completed, we are trying to get 
done as soon as possible. I would say within the next 90 days.
    Mr. Tierney. Thank you. You also talked in your report 
about saying you might recommend or suggest consideration of 
some of those cases' resolution through an ombudsman. Would you 
expandon that concept a little bit.
    Mr. Zinser. Yes, sir. It seemed to us that the complexities 
of this area for regulation is more than what an Inspector 
General could deal with, and there does in our view need to be 
some place that is independent and objective that members of a 
regulated community can go to with the type of grievances that 
we heard. It's not--in some cases, it's how fairly the 
regulations were interpreted. In some cases it's how fairly 
authority is exercised, and there are ombudsman programs in the 
Federal Government that deal with exactly those kinds of 
issues, and we think it's worth NOAA looking at whether or not 
that would be appropriate for this area.
    Mr. Tierney. Dr. Lubchenco, is that something you are, in 
fact, considering?
    Ms. Lubchenco. Congressman, we are considering all of the 
recommendations that were in the report.
    Mr. Tierney. I just didn't happen to see any mention of 
yours of that particular aspect in your written memo that went 
out. But you are considering it?
    Ms. Lubchenco. Everything that is in the report is on the 
table as far as I'm concerned.
    Mr. Tierney. Thank you.
    Mr. Zinser, you found in your report that the process for 
determining civil penalty assessment is, in your words, 
characterized by significant discretion on the part of 
individual enforcement attorneys. You note that there is, again 
in your words, minimal guidance on how to exercise that 
discretion. So in essence, if you put that in plain English, I 
think what you are saying is that the system has been run and 
individual enforcement attorneys decide on their own what 
penalties should be and there seems to be no schedule or 
guideline or whatever that they are obligated to follow and no 
supervision or at least not adequate supervision for superiors 
in setting amounts. Is that an accurate statement?
    Mr. Zinser. Yes, sir, except that there is a penalty 
schedule, but there is a great deal of flexibility within that 
schedule in terms of, for example, how many violations a 
fisherman is cited for and then for each of these violations 
whether you are fined at the lower end of the schedule or at 
the upper end of the schedule. And we couldn't find any kind of 
operating procedures that would guide an attorney to try to 
figure those types of issues, nor did we find any records in 
the attorneys' files as to how they arrived at their final 
assessments.
    Mr. Tierney. So I think the reason you concluded that you 
find it difficult to argue with those who view the process as 
arbitrary and in need of reform is based on the sheer lack of 
that structure or process for setting particular penalties for 
specific violations. So isn't that problem exacerbated by the 
fact that there is incredible complexity in the guidelines, in 
the process, and all that?
    Mr. Zinser. Yes, sir, I would agree with that.
    Mr. Tierney. In your estimation, wouldn't it beg for some 
review of the pending cases, at least in the Northeast, and 
then we would maybe hold off on enforcement while that's being 
done?
    Mr. Zinser. I do think that it does require some review of 
pending cases. What we did not find was widespread abuse or 
information that abusive conduct was widespread. So in that 
regard, I don't know that our report would support a nationwide 
moratorium on enforcement actions, but I do think it warrants a 
review of pending cases.
    Mr. Tierney. My time is up. We will get back to that later.
    Mr. Kucinich. The Chair recognizes Congressman Frank.
    Mr. Frank. To followup, Mr. Zinser, I think it is important 
that we have this review of pending cases with this 
recognition. What of the cases already adjudicated where there 
is a finding you made that there was a real unfairness--maybe I 
can address this to Dr. Lubchenco as well--we are the Federal 
Government. I think we should err on the side--well, not err, 
but just be open about this. Dr. Lubchenco, what about a 
procedure whereby egregious cases of abuse, they need not have 
been widespread to have been very negative on the individual 
who is the victim or individuals, can we set up a procedure 
whereby there can be some review and a revisiting of that, and 
in some cases perhaps an adjustment of the penalty? It's been 
done in the past. We are not talking about the courts coming in 
and ordering it. We are talking about us voluntarily, the 
Federal Government saying, you know, we think we made a mistake 
in this case. We were too hard on this or that individual, can 
we get such a procedure?
    Ms. Lubchenco. Congressman, I didn't see anything in the 
Inspector General's report that would lead me to believe that 
there's grounds for reopening old cases. I have asked my 
general counsel to review the docket of current cases and 
ensure that they are all appropriate to go ahead.
    Many of the problems that were identified in the report--
well, the cases that have gone to an administrative law judge 
have had an independent review by the judge of the merits of 
the case and decided based on that. So in those circumstances 
there has been an independent determination.
    Mr. Frank. I understand. And I'm not talking about somebody 
being able to do this as a matter of right. Again, we are the 
Federal Government. You didn't see anything in the report that 
suggest you look at old cases? Well, I did. I saw some examples 
that were given that seemed to be unfair. Why--I will say also 
administrate law judges, they aren't totally independent 
judges.
    When I first became the representative of a fishing area in 
1993, we had serious problems with an inappropriately close 
relationship between a prosecutor and individual law judges. 
NOAA at the time agreed and altered that. You say you didn't 
see anything in your report. What would be the harm in setting 
up a procedure whereby extraordinary cases where there appears 
to have been some unfairness, of taking another look at it?
    Ms. Lubchenco. Congressman, I would seek the Inspector 
General's counsel on that.
    Mr. Frank. Mr. Zinser, you are up.
    Mr. Zinser. I think the situations that you are referring 
to are exactly those we have agreed to look at in our followup.
    Mr. Frank. Well, you looked at them in your followup, but 
you are in power to relitigate them?
    Mr. Zinser. No, sir.
    Mr. Frank. But you have identified some that you think 
were--again, not huge amounts maybe--but you found some you 
think you should followup. Then, Dr. Lubchenco, if they were to 
followup and found to have been unfair, inappropriate, wouldn't 
we not, as the Federal Government, want to reopen them?
    Ms. Lubchenco. I think if those were the circumstances, 
that would be appropriate.
    Mr. Frank. Thank you.
    Mr. Jones, you've got a tough job. I understand that. But 
the report is obviously critical in some individual instances. 
Do you think the report was accurate, fair? Do you think it was 
unduly critical?
    Mr. Jones. No, I don't think it was unduly critical. Again, 
this was a report Dr. Lubchenco requested and Mr. Zinser 
provided. We take it very seriously and we are going to take a 
look----
    Mr. Frank. You don't intend--I guess we want two sets of 
things. One is some overall changes. You are going to be 
looking at these particular cases and seeing what the subjects 
were that the Inspector General talked about which do appear to 
have been very unfair?
    Mr. Jones. The question of the cases that he will be 
looking into, obviously I'm very anxious to see what the 
outcome of those will be as well because I feel very strongly 
that it's important to look at these cases and to do a very 
close analysis of what all the facts are in these cases. 
Because a great deal has been made of what they may represent. 
So I'm very anxious to find out.
    Mr. Frank. I do think we have an obligation not to simply 
stop mistakes going forward, but to undue them when they have 
happened. I will finish up.
    Dr. Lubchenco, you said these did not begin on your watch, 
these were prior, and I appreciate your commitment to fixing 
them. There's one other thing that has to be done. This is a 
statement, not a comment. I just figured I would mention it.
    Part of what we are told is that the problem with these 
exceptions and all these loopholes, I think that is a 
recognition of the fact that there is too much rigidity at the 
basis. When there is a problem with the basic system, too much 
pressure is then engendered for this exception and that 
exemption, etc. And that's one reason why I think we need to 
have flexibility in the basic statute. So instead of having to 
do these case by case and issue by issue, we can have more 
flexibility overall and that, I think, would reduce the 
complexity. Reducing the complexity reduces the burden of 
compliance both on the individual in the business and on law 
enforcement.
    Thank you, Mr. Chairman.
    Mr. Kucinich. Thank you very much, Congressman Frank.
    Now, Mr. Jones, the Inspector General's report says that 
about 90 percent of your investigators are criminal 
investigators. His report also says that given the structure of 
the Magnuson-Stevens Act, that the office has a disproportional 
number of criminal investigators. This raises a question about 
your own philosophy. Do you think that people who are in 
violation or could be in violation of regulations, where there 
are essentially administrative penalties, is it your opinion 
that they are criminals?
    Mr. Jones. Absolutely not. And again, you raise the term 
that this is a philosophy, and I have to take a very careful 
look at what he's presented to us and----
    Mr. Kucinich. No, what's your philosophy, not his 
philosophy. Do you think these people are criminals?
    Mr. Jones. No, I do not believe they are criminals.
    Mr. Kucinich. Why do you have so many criminal 
investigators? I don't understand that.
    Mr. Jones. The reason that we have criminal investigators 
in this position really goes back to the overall process in 
terms of what's occurred over the 40 years the agency's been in 
existence.
    Mr. Kucinich. I'm not talking 40 years, Mr. Jones. I'm 
talking about your experience, why do you have so many criminal 
investigators? I don't understand.
    Mr. Jones. The reason that we have criminal investigators 
is because they present to us the widest skill set and the 
deepest skill set that we have available to actually conduct 
the business that we have to conduct on the vast geographic----
    Mr. Kucinich. But the Inspector General says that according 
to the OLE, violations of the act typically do not result in 
criminal charges. Most violations, such as exceeding catch 
limits, result in administrative penalties alone.
    I raise this question because if you bring a mind-set to a 
task that says, well, these are a bunch of criminals, you get 
criminal investigators to help confirm that, you take a whole 
different approach in enforcement. I just wanted to point that 
out.
    Now, Mr. Jones, isn't it true that in December you wrote a 
director's note to the Office for Law Enforcement staff in 
which you said, ``We really have nothing to fear coming as a 
result of the Office of Inspector General review. We need not 
ask permission to, nor apologize for, doing our job.''
    Did you say that or did you write that?
    Mr. Jones. Yes, I did.
    Mr. Kucinich. Now that the IG report is out criticizing the 
job that you have done and the NOAA Administrator has issued a 
reform plan, I wonder if you still feel that you and your 
leadership of the Office for Law Enforcement do not foresee any 
need to make any significant changes?
    Mr. Jones. The letter was directed to our entire employee 
group and it was directed in a manner that was intended to 
encourage people that were undergoing a great deal of morale 
stress in terms of----
    Mr. Kucinich. What do you think, though? What do you think?
    Mr. Jones. At this point, as I stated earlier, we are going 
to do everything to follow Dr. Lubchenco's lead to resolve the 
issues.
    Mr. Kucinich. Not ``we.'' You. What do you think? Not what 
we think. What do you think?
    Mr. Jones. As I stated, I personally am committed to 
following through with the direction that I'll receive and to 
making the appropriate changes and to go to the premise and the 
philosophy, if you will, that this leadership wants us to go in 
or directs us to go in. That's what I believe.
    Mr. Kucinich. Thank you, Mr. Jones.
    Now, questions have been raised about your management in 
the Asset Forfeiture Fund. The IG has found that the Office for 
Law Enforcement did not maintain customary internal controls 
over the Asset Forfeiture Fund. And then they went ahead and 
commissioned an audit by forensic accountants.
    Are you as sure and are you sure that the accountants 
wouldn't find any wrongdoing? Since you have custody of this 
for years, are you pretty sure that the Asset Forfeiture Fund 
was run on the up-and-up, no problems?
    Mr. Jones. Yes, I'm very comfortable in that. The fund 
expenditures are spent in the same manner with the same 
protocols as are the other appropriated funds within NOAA. This 
money goes into a NOAA account and we follow the protocols that 
NOAA has in place to spend money.In fact, there are more 
restrictions on the expenditure of fund moneys. As you well 
know, the Magnuson Act specifies what that money could be spent 
on.
    Mr. Kucinich. Well, let me ask you, isn't it true that 
you've taken the Asset Forfeiture Fund, you are charging, 
rather, for international travel that you have taken?
    Mr. Jones. My office has not much. There may be some out of 
the Office of Law Enforcement.
    Mr. Kucinich. Not your office, you.
    Mr. Jones. Me, personally, I don't believe I've spent--I 
have done international travel. Most of my travel----
    Mr. Kucinich. Well, let me ask the Inspector General.
    Do you have any evidence that Mr. Jones has taken any 
international travel using Asset Forfeiture Fund moneys?
    Mr. Zinser. Sir, the preliminary, some of the preliminary 
results from the forensic review that we are doing does 
indicate that there has been international travel charged to 
that fund and I do believe that it shows it was travel charged 
by Mr. Jones, yes.
    Mr. Kucinich. I'm going to take that up in the second round 
of questioning.
    Mr. Tierney, it's your time to ask questions for a second 
round.
    Mr. Tierney. Thank you.
    Mr. Jones, prior to your appointment as the chief of the 
Office of Law Enforcement, what experience did you have with 
regulating fisheries or enforcing fishery regulations?
    Mr. Jones. None.
    Mr. Tierney. Had you done any enforcement of civil 
administrative violations versus criminal activity?
    Mr. Jones. Nothing extensive, no. My background is 
primarily in municipal law enforcement prior to my taking this 
position.
    Mr. Tierney. Sir, do you recall in 2006, September 2006, 
former Mayor John Bell, Senator Bruce Tarr, Representative Ann-
Margaret Ferrante, Louie Linquata, Jackie O'Dell, George McCabe 
from my office, and others came down to Washington to meet with 
you and at that time it was, I believe, Mr. Hogarth to talk 
about the improper tactics that were being complained of, the 
fact there were enforcement fishery regulations that seemed to 
be severely in question, derogatory language, imposition of 
inappropriately high fees and penalties, do you remember that, 
that visit?
    Mr. Jones. I remember visiting, yes, I do.
    Mr. Tierney. Do you remember promising at the end of that 
visit that you would come to Gloucester and talk with 
everybody? And I assume that you do.
    Mr. Jones. I remember--I do not want to be argumentative, 
but there were some misunderstandings about the followup on 
that, and we did make an extensive number of attempts to follow 
through with our commitment in that regard.
    Mr. Tierney. Well, did you ever come directly after that or 
before the auction was raided at the end of 2006?
    Mr. Jones. No.
    Mr. Tierney. So I guess to be fair to you, I think what you 
are saying is you tried to get here and couldn't get here for 
some reason?
    Mr. Jones. Yeah, there was some--yes.
    Mr. Tierney. What have you done or what did you do 
following that visit in September 2006 to remedy any of the 
problems that are raised?
    Mr. Jones. I looked into the complaints that I was aware of 
and to determine what the background of those complaints were 
and to try to make some determinations as to whether there was 
actually any improper conduct or was any improper conduct on 
behalf of our employees.
    Mr. Tierney. Could you tell me why you never established 
more formal guidelines for use of the forfeiture funds?
    Mr. Jones. The Magnuson Act has a direct set of specific 
areas that it can be used for. We followed that. And second, 
again, as I stated earlier, our use of the fund is done in the 
same manner as will be used in other funds for--from throughout 
NOAA.
    Mr. Tierney. You are familiar with the Inspector General's 
findings in his report that the Northeast area suffered fines 
of $5\1/2\ million, which is two and a half times the amount 
for the next highest region, and five times or more higher than 
the other four regions. Given that, and given all the other 
information in the Inspector General's report, and the 
complaints you have heard since 2006, you didn't think that 
some remedial action was necessary both with the fund and with 
respect to responding to these complaints?
    Mr. Jones. Let me just first state clearly that I do not 
hold responsibility for the attorneys and for the setting and 
establishment of funds. We investigate the cases and I pass 
those, my office passes those to the Office of General Counsel.
    But beyond that, to say did we follow through, did we look 
at that, once again, the fund expenditures are done in 
accordance with the same as any other NOAA account. So there's 
checks and balances along the way for that and for looking at 
how appropriated money is spent as well as fund money.
    The actual fines that are levied and the levels of those, 
we've taken a look at that and there are some numbers in there, 
but again, that doesn't follow directly under my 
responsibility, but I do not----
    Mr. Tierney. I'm having a hard time, Mr. Jones, with when I 
look at all the complaints that have gone back to you directly 
and to NOAA from this community and others in the Northeast in 
particular, but elsewhere in the country, as well, how is it 
that you know all of those complaints, that you are familiar 
with all those situations, you now know the Inspector General's 
report and all of the grievances that he cites in there, how 
can you put out a director's minute to your staff indicating 
that you see nothing or perceive nothing will be wrong on that 
basis? I think it shows that you are out of touch with what's 
going on in your agency there.
    Mr. Jones. Well, again, I have a great deal of respect for 
the Inspector General and what they have put forward. I have a 
great deal of confidence in our employees in what they did, and 
I wanted to be sure and just trying to encourage them through 
this report and where they would be at.
    I have no doubt that there are, as--if you read the entire 
memo, that we could have made mistakes, that there would be 
things that we look at and maybe changes we have to make. But, 
again, to say individual employees had anything to fear, that 
was my point.
    Mr. Tierney. You said that you had nothing to fear on that 
basis and you also said you respect the fishing community, but 
you seem to give short shrift to their allegations and their 
complaints.
    Let me just summarize here for a second. Since 1998, the 
Inspector General has been reporting that the Office of Law 
Enforcement has a lack of policy direction and lack of mission 
focus. His report has recommended that NMFS develop specific 
enforcement priorities and goals for the OLE, which hasn't been 
done.
    The OLE has a history of poor communication and mistrust, 
particularly in the Northeast; there's been, at best, only 
limited progress in improving transparency in the fishing 
management process; that under your watch, there's been 
continued and even exacerbated mistrust and lack of confidence 
and a continued lack of communication; that under your watch 
the civil penalty process continues to lack transparency and 
appears to be arbitrary and unfair; that there continues to be 
a failure to distinguish what is an appropriate penalty as 
opposed to what is an excessive fine in order to deter future 
violations and reflect the violations' harm for natural 
resources,particularly with regard to paper errors that are 
found in the face of complex rules and data issues.
    Mr. Jones, why shouldn't Dr. Lubchenco take some remedial 
action here, some personnel actions here, to either discipline 
or fire you or somebody that's responsible for that continuing 
situation?
    Mr. Jones. Well, once again, I think--once again, I think 
there is a lot more detail behind that and I knew that--you 
know, again, I will reiterate that my office is not responsible 
for setting the fines and penalties. However, I will say that 
as we look at the Inspector General's report, he has said that 
he would look at specific cases. To date those cases have yet 
to be evaluated.
    I have also had a commitment to look at individual cases 
and follow through and hold people accountable for violations 
and inappropriate conduct, and my track record will show that 
as well, and I'm committed to follow through with what the 
Inspector General has recommended and the direction that 
leadership has and will give us, and I'm very capable and very 
committed to doing that.
    Mr. Kucinich. The gentleman's time has expired. We will 
certainly have another round. We are going to Mr. Frank. You 
may proceed, Congressman Frank.
    Mr. Frank. Following up on that, Mr. Jones, you said that 
you would take appropriate action when something was done 
wrong. Could we get--has law enforcement officials--I'm sure 
the majority of them are very hard working and decent. Law 
enforcement is never an easy job. People don't like to be 
stopped for doing things they shouldn't do, but there are 
occasional excesses. It's important that we have good 
enforcement but also be protected. Have people been disciplined 
for the kind of abuses that the Inspector General talks about?
    Mr. Jones. Yes, they have. We have investigated 15 or 20 
per year. We are an agency----
    Mr. Frank. Could we get, without naming names necessarily, 
but just a list of the disciplinary actions that have been 
taken because of abuses?
    Mr. Jones. Again, I don't know whether it's appropriate 
with regard to that.
    Mr. Frank. What would be inappropriate about telling us the 
number of people that you disciplined and why, even if you 
leave the names aside? I'm not sure that's necessary, but I 
don't understand why you couldn't give us a summary of 
disciplinary action or a list of them.
    Mr. Jones. I believe that we could probably do that. I 
don't have it with me, of course.
    Mr. Frank. No. Let me also ask the question: Were you 
surprised by the Inspector General's report? Was it more 
critical that you expected?
    Mr. Jones. Yes, I was, actually.
    Mr. Frank. All right. But that goes to Mr. Tierney's point. 
You told me that you don't contest the Inspector General's 
report and apparently things were worse than you realized. So 
the question is going forward, what do you do to prevent 
yourself from being surprised--again, if you were there--and 
now you acknowledge things were worse in your area than you 
thought they were, you have committed to looking at individual 
cases. What kind of structural organizational changes do we 
have? What do you plan to implement, what policies to prevent 
these abuses and get you better informed so you are not 
surprised by a subsequent report?
    Mr. Jones. Well, we are going to conduct a work force 
analysis that Dr. Lubchenco has directed us to conduct and we 
will take a look at----
    Mr. Frank. Workforce analysis means what?
    Mr. Jones. I'm sorry. That means that we are taking a look 
at the mix of the criminal investigators versus non-criminal--
--
    Mr. Frank. What about individual investigators? Some of the 
people apparently didn't think they should have done something, 
is there a process for that?
    Mr. Jones. There is a process for that in place and we 
followup when we find out that there is----
    Mr. Frank. Again, I say to you, Mr. Jones, what I said to 
the bank regulators on Friday, we would ask them about 
individual allegations that they were too harsh and banks 
weren't able to lend because of the lack of lending activity is 
a serious problem. The gentleman from Cleveland has looked into 
that, as well.
    You acknowledged a general problem, but every time we ask 
you about a specific, you say things are doing OK. So there is 
a disconnect there. It can't be that your procedures as you 
have them were good if you then were surprised by an unpopular 
or unfavorable report. So we need to know what changes are you 
making that, A, correct these things, and B, get you in a 
better position for them not to occur?
    Mr. Jones. Well, again, we are going to be pulling 
additional data and information on what has occurred, what 
different cases are involved, and what processes, and we will 
be scrutinizing those more closely.
    Mr. Frank. You got some data. What do you do about it? Are 
you planning any structural changes? Changing the mix is one 
thing. But it does seem like there is some serious deficiencies 
in the operation that were revealed by the report that you do 
not contest. You said it was a fair report. You were surprised 
by how negative it was. It's not enough to say, well, we are 
just going to get more information.
    Somebody, Dr. Lubchenco, and I understand you inherited 
this, but somebody better be thinking seriously about more than 
data analysis to prevent the reoccurrence of this situation. 
Again, it's a very critical report that surprised the man in 
charge. No one contested the report. So what do we do from 
here?
    Mr. Jones. Well, again, I can only reiterate to you that we 
take it very seriously. We are going to follow the direction 
that we receive and we will be looking at every aspect of what 
we do and making determinations on how we can make certain that 
it does not happen again.
    Mr. Frank. I assume we will get some reports on that. I 
think there is a certain amount of skepticism. Dr. Lubchenco, I 
just would add again, I continue to be convinced that--let me 
ask you, the fact that we have--people have said, the Inspector 
General said there are a lot of exemptions, it's a very complex 
thing to administer partly because of all the exemptions, etc. 
Does that not suggest going back to the basic statute because 
it's absolutely not ideal to have a situation where so many 
exemptions, exceptions, etc., have to happen? Is there some way 
the statute can reduce that?
    Ms. Lubchenco. Congressman, I think that the rules are a 
nightmare, frankly. They are very complex. It's difficult for 
everyone to know exactly what the rules are. And I think it is 
an area that is most appropriate to pay some attention to.
    Mr. Frank. Thank you. Again, I would say we may disagree on 
this, part of the problem if you start with a very basic, rigid 
rule, then you generate a lot more exceptions. I think we put 
all the flexibility in, the exceptions, etc.--I think you need 
to go back to the statute. You can't correct an excessively 
rigid statute by a whole lot of regulation. I think we have to 
go back to the statute, as well.
    Thank you, Mr. Chairman.
    Mr. Kucinich. Thank you very much, Congressman Frank.
    Now, Mr. Jones, the IG's report, in talking about the Asset 
Forfeiture Fund, says that they were constraining your ability 
to examine the use of the Asset Forfeiture Fund; that they are 
not aware of the fund ever having been audited; that the 
proceeds and accounting for the proceeds seem to have weak 
internal controls and could not--and the IG could not readily 
determine how NOAA utilized the funds.
    Now, Mr. Jones, the IG stated evidence suggests that you 
have charged the Asset Forfeiture Fund for international travel 
that you, yourself, have taken. Isn't it true that some or all 
of that travel was not case related since you don't work cases 
as head of Office of Law Enforcement, Mr. Jones?
    Mr. Jones. I would have to, again, first await the specific 
findings to determine exactly what the accounting shows as to 
whether I personally was on the fund or on appropriated moneys 
that any expenses for my travel was charged to. I am not aware 
of my travel expenses being charged to the Asset Forfeiture 
Fund. I have taken international travel. I have conducted that 
business on behalf of NOAA and strictly on behalf of NOAA only, 
and so there are a number of different trips that I have taken 
in the 10-years plus that I've been in this job, and it is 
possible that some of those actual expenses were charged to the 
Asset Forfeiture Fund.
    Now, I will say right up front there is travel that occurs 
within NOAA that is charged--there has been international 
travel charged to the Asset Forfeiture Fund, and that is in 
support of the effort to resolve issues involving illegal, 
unreported fishing on the international scale, on what they 
call MCS, Monitored Controlled Surveillance type, of work.
    Mr. Kucinich. But from the information we have, your travel 
is not case related?
    Mr. Jones. Is not directly case related, but it is in 
support of international investigation.
    Mr. Kucinich. Thank you.
    Now, didn't your office inform the Administrator of NOAA 
just last month that international travel charged to the Asset 
Forfeiture Fund was, ``the majority of all travel requirements 
for personnel to accommodate case-related work supported 
through the fund?'' Now wouldn't you have to admit that, at 
least as part of your international travel is concerned, this 
explanation that you gave the Administrator was not accurate?
    Mr. Jones. It was not personal information, that's correct. 
Those are general statements. Those are general statements----
    Mr. Kucinich. It was partial information?
    Mr. Jones. Those are general statements to try to give an 
idea of what the fund expenditures were. We got a general 
question, what types of things, so we gave examples. That list 
is certainly not comprehensive. There is an extensive number of 
things that would not be on that list.
    Mr. Kucinich. I just want to make sure that we are clear 
because you are under oath.
    Mr. Jones. I understand.
    Mr. Kucinich. Now, isn't it true that you, yourself, had no 
fisheries experience or Federal law enforcement training before 
you became chief of enforcement, chief of enforcement at NOAA?
    Mr. Jones. That's correct.
    Mr. Kucinich. Now, you placed a number of state police 
officers in positions, in the top positions of the Office of 
Law Enforcement. Isn't it true that none of those individuals 
had fisheries law enforcement experience either?
    Mr. Jones. I've hired a number of people in my 10 years and 
some of them did have enforcement experience in the Federal 
level.
    Mr. Kucinich. Let's talk about Mr. Spurrier, Mr. Paterni, 
and Mr. Robbins. Isn't it true that you waived the NOAA 
requirement of Federal law enforcement training to give NOAA 
jobs to each of those individuals?
    Mr. Jones. Those individuals were hired in complete 
compliance with the selection process within NOAA.
    Mr. Kucinich. Did you waive the NOAA requirement for 
Federal law enforcement training?
    Mr. Jones. There was no waiver required. I did not make any 
specific waiver. Those applications were vetted through the 
human resources process of NOAA, and they were hired through 
that process. Those individuals were on the certification that 
I received.
    Mr. Kucinich. Could you tell this subcommittee then how it 
was that officers were hired who had none of the required 
credentials or fisheries experience and they ended up taking 
over a leadership position of a Federal resource law 
enforcement agency? How did that happen? How did it happen?
    Mr. Jones. They were among those well-qualified applicants 
that we received at the time in the interview process that we 
did in the selecting of them, and they were very well qualified 
to fill the positions. Those qualifications were established 
and vetted through the human resources process of NOAA with no 
intervention on my part.
    Mr. Kucinich. Yeah, I understand you have to have some 
qualifications, but wouldn't you want someone that had fishery 
experience?
    Mr. Jones. That would be preferred if those individuals who 
applied who were qualified in the management areas that we 
needed would have had that fisheries experience. I selected the 
best applicants for the positions.
    Mr. Kucinich. Everyone you selected had fisheries 
experience?
    Mr. Jones. No, I'm not saying that. They----
    Mr. Kucinich. I just want to establish that you are not 
saying that they all had fisheries experience. Thank you.
    Mr. Jones. Absolutely not. Several of them did not.
    Mr. Kucinich. Thank you, Mr. Jones.
    Mr. Tierney.
    Mr. Tierney. Mr. Jones, just not even going back beyond 
2006, but at least since 2006 when you personally became aware 
of a number of complaints about the derogatory language, about 
the attitude, about treating fishermen as criminals, about the 
way warrants were being executed, sometimes searches without, 
at least allegedly without, warrants and all of that, did you 
ever order any particular investigation into any one of those 
incidents?
    Mr. Jones. Yes, I did. We investigated several of them that 
we had specifics on.
    Mr. Tierney. Did reports emanate from those investigations?
    Mr. Jones. We have our OPR reports, our Office of 
Professional Responsibility, which is essentially our internal 
affairs.
    Mr. Tierney. Will you share copies of those reports with 
this committee?
    Mr. Jones. If it's appropriate to do so.
    Mr. Tierney. It's appropriate. It's very appropriate.
    Mr. Kucinich. Let me state that your appearance here is 
voluntary. We invited you under threat of subpoena. We also 
have the ability to gain those documents without your 
cooperation, but we always appreciate your cooperation.
    Thank you. You may proceed.
    Mr. Tierney. Dr. Lubchenco, why shouldn't Congress amend 
the act and just have all the moneys collected on forfeiture, 
asset forfeiture, go to the treasury and have NOAA just ask for 
an appropriation every year? Why should we continue to allow 
that to be the way it is now?
    Ms. Lubchenco. Congressman, I understand there is an 
appearance of perverse incentives operating here. I think it is 
useful to note that the Magnuson Act specifies the types of 
activities that are appropriate to be--the types of activities 
that are appropriate, for which it is appropriate, to use the 
Asset Forfeiture Fund. And I would note that those activities 
and the fact that the funds go to NOAA have a parallel to very 
similar situations in many other agencies and departments.
    Mr. Tierney. But I'm not sure those agencies or departments 
have the appearance of abuse the way that we have here. You 
have the Northeast getting whacked with five times what other 
regions are getting whacked on that. It does raise a real 
question of perverse incentives. And I know it's prescribed how 
you can use it, but it's nice if the money be used for those 
prescribed purposes as opposed to struggle with Congress 
getting an appropriation every year.
    Again, given the circumstances of the Inspector General 
report and the history here of those fines being so far out of 
proportion to other areas of the country, why shouldn't we at 
least--Members that come from this region say enough already. 
We are just going to let that money go to the Treasury and you 
have to go through appropriation every year and we'll get rid 
of any appearance of impropriety.
    Ms. Lubchenco. Congressman, I think that my preference 
would be to ensure that we have the kinds of checks and 
balances we need that the funds are being used as they were 
intended. And that is exactly what we intend to----
    Mr. Tierney. Excuse me for interrupting. But I'm not 
concerned how the use of those funds is going. I think Mr. 
Kucinich has covered that area. I'm concerned about the idea 
that people have been getting whacked excessively to fund that 
account. That's the problem here. I think--we care how the 
money is being used and we would expect it would be used for 
the proper purposes, but our concern here is that in the 
Northeast we are getting disproportionately penalized, and on a 
regular basis, and I'm anxious to see the reports that Mr. 
Jones produces. I would like to have seen them sooner, some 
report back on them, but this simply can't go on.
    I don't know--I hope that you're listening in the past and 
today, this morning, as well as here, and if you listen to the 
witnesses later on today, you are going to see how serious that 
is and why this area seems to be singled out. Why do we need 
cases that are delayed until this is sorted out, whether or not 
there is unfairness here, whether or not complexity is just 
overwhelming?
    While I'm on that subject, what allowance is made for 
somebody that's been accused of a violation for the fact that 
these regulations may be so complex and for the fact that 
sometimes the data coming out of NOAA itself contributes to 
this situation?
    Ms. Lubchenco. My understanding is that the vast number of 
violations are, in fact, settled without any penalty and they 
are, in fact, the large number that are misunderstandings that 
are--that have a written warning or verbal warning and that 
it's only less than 2 percent of the incidents that actually go 
to the more severe formal notice of violation.
    So I think the focus of our discussions is really on that 2 
percent, and that's a very important 2 percent, and part of my 
intent is that not only do we know what the funds are being 
used for, but we have better guidelines and procedures in place 
so that the fines that might be issued are, in fact, 
appropriate and not excessive.
    Mr. Tierney. I hope and I invite you to stay to hear the 
next panel. If you can't, I invite you to read their testimony. 
I think added to what you heard this morning and otherwise, you 
will see a number of instances where people get charged and 
then it's very difficult for them to appeal or to challenge 
because of the circumstances that have been going on. My time 
is up.
    Ms. Lubchenco. Could I respond just very quickly to that?
    Mr. Tierney. Sure.
    Ms. Lubchenco. Unfortunately, I'm not able to stay for the 
second hearing. I have read their testimony. And I very much 
look forward to hearing a report of the exchange and Q and A.
    Mr. Kucinich. If I may, who is here from your office who 
will take the notes back to you from the second panel?
    Ms. Lubchenco. Thank you, Chairman. Mr. Eric Schwaab, who 
is my Director of NOAA Fisheries, is here with us and intends 
to stay.
    Mr. Kucinich. Good. I just want to make sure if you are not 
going to be here, someone is taking close notes. OK.
    Ms. Lubchenco. I've charged two people with responding to 
the IG report, my general counsel, and Mr. Schwaab, he's here 
for this purpose.
    Mr. Kucinich. Thank you, Dr. Lubchenco.
    The Chair recognizes Congressman Frank for 5 minutes.
    Mr. Frank. Just one question. I want to defer to my 
colleague, Mr. Tierney.
    Mr. Zinser, two questions, for how long has this situation 
of disproportionately serious fines and discipline in the 
Northeast gone on?
    Mr. Zinser. The best we can tell, the relationship in the 
Northeast between the enforcement arm of NOAA and the fishing 
community probably goes back over 10 years.
    Mr. Frank. Then, Dr. Lubchenco, Mr. Jones, particularly Mr. 
Jones, you were here, for over 10 years this region has been 
hit disproportionally. I have a very simple question, why? Mr. 
Jones, can you tell me why? Have you looked into this, what the 
reasons were for this discriminatory approach?
    Mr. Jones. Well, again, I have been here 10 years and I----
    Mr. Frank. You just thought that's the way it was?
    Mr. Jones. I don't sort--again, I don't set the fines and 
penalties.
    Mr. Frank. No, Mr. Jones, I understand that, but it's not 
just fines and penalties. Apparently for 10 years we have a 
disproportionate negative impact on one region. Did nobody call 
that to your attention? Has nobody looked into that? Now that 
you have known this for some time, do you know why that's been 
the case?
    Mr. Jones. Well, there are some differences in the volume 
of mandates and the amount of casework that goes on here to 
some degree and whether the enforcement----
    Mr. Frank. No, I'm not talking about proportionate. We are 
talking about disproportionate case by case. It's not the total 
volume. Apparently the findings you don't contest is there was 
a pattern of discriminatory or much harsher enforcement here 
than elsewhere taking everything else into account. Has no one 
in your operation tried to figure out that was the case?
    Mr. Jones. Well, once again, we will look at it on a case-
by-case basis, and if we get any reports whatsoever of any 
malfeasance or inappropriate activity----
    Mr. Frank. Mr. Jones, you said you accepted the Inspector 
General's report. He reports a pattern of geographical 
discrimination. You have that. I would say this to Dr. 
Lubchenco, too, I would want to know why. Is it an accident? If 
it was for a year, that's one thing. For over 10 years there's 
been this pattern of geographical discrimination. Hasn't anyone 
tried to figure out why that has occurred over and above the 
individual situations?
    Ms. Lubchenco. Congressman, I have asked for an analysis of 
the penalties region by region so that I have a better 
understanding of exactly what the contributing factors are.
    Mr. Frank. OK. But the Inspector General, has found this 
already. So you reject his data. So I would hope that it will 
be simultaneously you would try to figure out why it happened.
    Ms. Lubchenco. That's exactly what we are looking into, and 
the patterns are fairly complicated. It's partially a function 
of how many rules there are and how many fishermen there are in 
the region. It's not necessarily the same from region to region 
in terms of the complexities of the fishing operation.
    Mr. Frank. I understand that. Mr. Zinser, do you have any 
sense of why this occurred?
    Mr. Zinser. Yes, sir. It was clear to us early on that the 
enforcement of the rules were left to the regional enforcement 
officials. There was no national----
    Mr. Frank. So taking everything else into account, you are 
making this finding of discrimination, everything else being 
equal, it's not that this is more complicated here or more 
frequent here, given all that, there was still a pattern of 
discrimination?
    Mr. Zinser. It was clearly that the enforcement in the 
Northeast region is different than enforcement in other regions 
and you have to look at that specific region for the answer, I 
believe.
    Mr. Frank. Well, then I will repeat my question. Is anybody 
doing that, Dr. Lubchenco?
    Ms. Lubchenco. Congressman, it's pretty clear to me there 
is a strongly adversarial relationship in New England. And I 
think that is particularly problematic and is one of the areas 
that the IG report flags and one that we need to spend a lot of 
time----
    Mr. Frank. I appreciate that. But you know, some of us have 
made some suggestions about ways you could have ameliorated 
that, through personnel and elsewhere. We haven't gotten 
anywhere with those. But I appreciate that. But that means we 
need to work seriously on trying to ameliorate that, that is, 
with personnel and other factors.
    And it also maybe it's suggesting maybe our rules are more 
complicated than elsewhere, and that's another argument for, I 
think, more flexibility in the statute so that we get less 
monkey business in the regulations.
    Thank you, Mr. Chairman.
    Mr. Kucinich. I thank Congressman Frank.
    Mr. Jones, I've seen you sit through a series of questions 
to you and when the question relates to your conduct of office 
in the context of Mr. Zinser's report, you repeatedly say, Look 
at it, study it, but do you get it?
    Mr. Jones. I get it loud and clearly, sir.
    Mr. Kucinich. Excuse me?
    Mr. Jones. I get it loud and clearly. I understand your 
point and his point.
    Mr. Kucinich. What is it that you get?
    Mr. Jones. That there is a desire for the approach to how 
we conduct law enforcement operations in this organization----
    Mr. Kucinich. Tell me more.
    Mr. Jones. We will evaluate and see what has to be done 
with the criminal investigator position versus using other 
types of positions. We look carefully at the cases that are 
charged to determine the merits of those cases and assure that 
persons are charged fairly, and we will follow through with the 
other direction that we get from Dr. Lubchenco in terms of 
management of the fund and any questions or issues that come up 
with regard to the fund.
    I take Mr. Tierney's point directly with regard to the 
issues and his concerns for followup in the previous meetings, 
and I can assure you that any future indications such as that 
and some of past ones we will also be digging into and taking a 
very close look at.
    Mr. Kucinich. When you hear what's going on, this 
adversarial climate that's been described, do you take any 
responsibility for creating that?
    Mr. Jones. I certainly do. I have to. I have been with the 
program for 10 years and your point that having looked at some 
of this more closely should have been done, I take that very 
directly and look at that, as well.
    And again, my staff, the people that work with me, I have a 
greet deal of confidence in. I'm not criticizing them, and I 
will not state directly that in evaluating the changes that we 
have to go forward, that I am going to place blame in any way, 
shape, or form below my level.
    Mr. Kucinich. So you are going to take responsibility?
    Mr. Jones. I will take responsibility.
    Mr. Kucinich. And you are also looking at what you can do 
to try to amend some of the deficiencies that Mr. Zinser has 
pointed out; is that right?
    Mr. Jones. That's correct.
    Mr. Kucinich. You are aware of how the fishermen feel with 
respect to arbitrary, even capricious, heavy-handed treatment 
of them, are you aware of that?
    Mr. Jones. I'm aware of it. I have talked with some of them 
personally and on different occasions have met with them 
personally, and I do understand that, and obviously not as 
frequently as I could have or should have, but I can meet with 
them and spend more time with them.
    Mr. Kucinich. You understand, but what are you going to do 
about it?
    Mr. Jones. Well, once again, we are going to make certain 
that our approach and our enforcement efforts are fair and 
direct. Again, look at what we have done right, which, again, I 
want to reiterate and say clearly we have done many things 
right.
    The Attorney General or, excuse me, the Inspector General 
has said that they have not found widespread abuse, but he 
indicates specific problems. So we are going to look at what 
we've done right and we are going to look at what we've done 
wrong and try to determine exactly what we need to change to 
make sure that we resolve those issues.
    Mr. Kucinich. All right. The Chair recognizes Mr. Tierney.
    Mr. Tierney. Thank you. You yield?
    Mr. Kucinich. I'm yielding the remainder of our time.
    Mr. Tierney. Mr. Jones, I hope that part of that will be 
review of the individuals that are responsible for enforcement 
in this Northeast region, and it's through a case-by-case 
analysis of their behavior and conduct and attitude and be able 
to determine that because that seems to me it may not be 
widespread, but certainly is focused here in Northeast and 
you've certainly heard a large number of complaints and 
allegations from this area. So that will be important for us.
    Ms. Lubchenco, I hope you will also take a look at that in 
terms of the importance of making sure that analysis or review 
of personnel is done, because besides the complexity of 
regulations, that seems to be another factor in here.
    With respect to the complexity of the regulations and the 
lack of flexibility in the statute, do you have any sympathies 
at all for legislation that's now pending that would provide 
more flexibility? Some argue that it's already in the statute, 
that this would be an exercise. I can give you that option, as 
well. Would you exercise more flexibility in allowing fishing 
to proceed? Or do you support a change in the statute that 
would allow, therefore, some of the exemptions to be changed so 
that when it is appropriate, people get out and fish for a 
living?
    I know you heard from Mr. Levins this morning, that with 
respect to your comment that you would like to help people with 
job training and loans, but that's not the problem here. 
There's a lot of fish out there that people can get. People 
don't necessarily want to take a loan. They don't necessarily 
want to get retrained. Where there's fish out there, they want 
to earn their living by fishing. Can you accommodate that and 
support either a statute change or different way to enforce 
these regulations to make sure that happens?
    Ms. Lubchenco. Congressman, I'm not sure that the 
complexity of the regulations is going to be fixed with 
increasing flexibility. I think they are both valid issues to 
be discussed. I understand the current economic situation and 
the desire of fishermen to be out fishing. It's our intent to 
work with them and to identify ways that we can continue to 
rebuild all of the stocks while still maintaining viable 
livelihoods for those fishermen.
    Mr. Tierney. When you say ``viable livelihood,'' fishing?
    Ms. Lubchenco. Yes.
    Mr. Tierney. Or are you talking about alternatives?
    Ms. Lubchenco. Fishing.
    Mr. Tierney. And you are talking about making sure--well, 
we can get into it in more detail later. I really wanted to 
know your attitude about that. I thank the chairman for 
allowing this time. We need to find a way to make this work, 
either by looking at the way we put it in practice, the 
existing regulations of law, or changes we need to make.
    Thank you.
    Mr. Kucinich. I thank the gentlemen. This concludes the 
first panel. I want to thank the witnesses for appearing. The 
subcommittee will have additional questions which we will 
submit in writing. We ask for your cooperation in answering the 
questions. I also want to say that this subcommittee will 
retain jurisdiction over this matter and we will follow IG's 
recommendations and will see how effectively NOAA responds to 
them.
    Again, thank you to the first panel, Mr. Zinser, Dr. 
Lubchenco, Mr. Jones, for your presence here. I know it hasn't 
been particularly easy, but the subcommittee is going to be 
insistent, not just getting answers, but seeing a change of 
direction.
    Thank you.
    I'm going to call the next panel. I'll start introducing 
them so we can keep moving here.
    Mr. Stephen Ouellette, who is an attorney, has been 
practicing here in Gloucester for over 20 years. He represents 
local fishermen who are charged with violations of Federal 
fisheries regulations.
    Richard Burgess is a fisherman and boat owner who lives 
with his family in Manchester, Maine--Manchester, Mass. He's 
fished since he was a teenager, owning fishing vessels since 
1976. He currently owns four small ground fish gill net 
vessels, home port in Gloucester. Eight families are supported 
by the fleet of boats. He serves as president and director of 
fisherman organizations, including being founder and director 
of the Northeast Seafood Coalition and serving on the board of 
the Massachusetts Fishermen Partnership and the Massachusetts 
Fishery Recovery Commission.
    Mr. Jim Kendall is a former New Bedford scallop boat 
captain and fisherman for many years, who now owns his own 
seafood consulting company, which counts many fishing-related 
businesses and organizations as its clientele. He is also a 
former two-term New England Fishery Council member.
    As with the first panel, it's the policy of the Committee 
on Oversight and Government Reform to swear in all witnesses 
before they testify. I would ask that the witnesses rise and 
raise their right hands.
    [Witnesses sworn.]
    Mr. Kucinich. Thank you. Let the record reflect each of the 
witnesses answered in the affirmative.
    As with panel one, I ask that each witness give an oral 
summary of his testimony. Keep this summary under 5 minutes in 
duration. Your complete written statement will be included in 
the hearing records.
    Mr. Ouellette, you will be our first witness. I ask that 
you proceed.

  STATEMENTS OF STEPHEN OUELLETTE, ATTORNEY; RICHARD BURGESS, 
   GLOUCESTER-BASED FISHERMAN; AND JIM KENDALL, NEW BEDFORD 
   SEAFOOD CONSULTING, FORMER SCALLOP FISHERMAN, FORMER NEW 
                 ENGLAND FISHERY COUNCIL MEMBER

                 STATEMENT OF STEPHEN OUELLETTE

    Mr. Ouellette. Good afternoon, Chairman Kucinich, 
Congressman Tierney, Congressman Frank. I want to thank you all 
for coming to Gloucester and for the time that you have devoted 
to this important issue.
    At the same time, obviously, I would like to thank our 
host, Mayor Kirk, for all that she's done in bringing together 
NOAA officials and members of the fishing community. Most 
importantly, I would like to thank my Congressman Tierney and 
my representatives from the state legislature who worked 
together to really bring together the necessary forces to get 
the Inspector General to investigate the important issues of 
NOAA law enforcement.
    And especially on behalf of the entire industry, I would 
like to extend our thanks to Mr. Zinser and his staff for 
interviewing many participants in the fishery, for the 
courtesies they extended in making themselves available at odd 
times and odd places and to the thorough job and report that 
they have done and are still doing.
    Initially, I had some very prepared remarks and I think I'm 
going to have to get off script just because of some of what I 
heard today.
    Let me tell you that although I represent individuals in 
enforcement cases as an attorney, that was not my intent when I 
opened a practice on Cape Ann. In point of fact, it was a very 
small part of the practice.
    When I first came up here from Boston in 1994, I got 
heavily involved in the management process and believed 
wholeheartedly that the industry, in conjunction with the 
National Marine Fishery Service of NOAA, could make a 
difference and return our fisheries to a sustainable condition.
    For over 15 years I have worked alongside the hardworking 
fishermen of New England, an honorable group, and I'm honored 
to represent them. Sadly, however, over the course of 15 years 
of sacrifice, watching vessels disappear, watching the fleet 
shrink, little has been returned to this industry. Instead, all 
we have seen is an increasing set of complicated regulations 
that have increased the regulatory burden on small business 
owners and made conducting a business virtually impossible on a 
day-to-day basis.
    We have seen fish stocks rebound. Currently, at least in 
the last fishing year, despite the availability of rebuilt 
stocks, approximately $500 million worth of seafood was not 
landed in Massachusetts and the rest of New England that was 
available according to NOAA scientists, and the reason for that 
is the lack of flexibility in the Magnuson Act.
    At the same time, I see a bunch of small businessmen who 
are burdened by unbelievable regulatory burden. Some of it is 
necessary because of the need to account for variations in the 
fisheries, but alongside me I have approximately 6,000 pages of 
permit holder letters that have been sent to each permit holder 
over the last 10 years.
    To some individuals like Mr. Burgess, who sits alongside 
me, he receives between 11 and 18 sets of these notices every 
year. They are complicated; they are confusing; they are often 
conflicting.
    At the same time, NOAA and NMFS, who are supposed to be 
working with us, have began to enforce these regulations a 
manner in which can only be described as un-American. The fines 
are unbelievable. The minimum fine--there is a penalty schedule 
that's attached to my statement--starts at $5,000 for a 
violation, for the first violation, up to $80,000 for the first 
violation. Fines are repetitively charged.
    Over the last 10 years we have seen fines change from 
serious fines for conservation violations to half-million 
dollars fines for late payment. The agency seems to have lost 
total touch with the people it regulates.
    Some of these violations, in fact, we discovered were being 
observed by NOAA personnel who sat by idly knowing that 
somebody was not getting a report in timely and then turned it 
over to law enforcement who issued half-million dollars fines 
all for unintentional, totally understandable violations.
    The situation is unbearable. And that is why eventually 
some of us, and for 10 years I have been writing to my 
congressional delegation requesting that they investigate and 
make changes. I'm very happy that you have. But much harm has 
been inflicted on these agency--on the industry over the last 
10 years and something needs to be done both for the future and 
to address those people who were unfairly treated in the past.
    I know that I have run over, but again, one of the major 
problems we have is the process by which fines are set. This 
issue of what factors go into it by NOAA attorneys, we are 
representing respondents, it is our responsibility to argue to 
an administrative law judge why the fine is inappropriate, yet 
we are not allowed to know the basic elements that the 
attorneys use in setting the fines. So we end up in an 
impossible situation; and as a result, many fisherman do 
settle. They settle at amounts they can't afford to pay. 
Ultimately, in 2 years, some amount comes due, they lose their 
boats, they lose their homes, they lose the ability to put 
their children through college and they lose--we lose an 
important part of our culture.
    [The prepared statement of Mr. Ouellette follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Kucinich. Thank you very much, Mr. Ouellette.
    Mr. Burgess, you may proceed.

                  STATEMENT OF RICHARD BURGESS

    Mr. Burgess. Thank you, Chairman.
    On one of my boats, one out of my four boats over the past 
few years, just to make it very simple, I have had one of Mr. 
Jones's law enforcement agents call me into an office and say, 
``We have got a problem with your captain.'' As time went on 
during the short meeting, the agent wanted to know how much 
money I paid my captain, how much money I paid myself, how much 
money my wife made at her job, how much money I have in my 
savings account and my checkbooks, and I called Mr. Ouellette 
and it went from there.
    Two years ago I had the same vessel that has three permits 
on it. We were within 2\1/2\ days of using up the first permit. 
We had a leasing agreement setting in the law enforcement 
office in NOAA. I called the woman that posts these days at sea 
up in her computer and lets us know, when they can, how many 
days we have left. She said, ``Rich, I believe you have two, 
I'm not positive because we have been two or 3 weeks out of 
date on this whole computer system,'' but she says, ``I believe 
you have two-and-a-half days left on your permit, on the first 
one out of three.''
    I had a personal problem. I couldn't go down to the office. 
She said, ``There should be an agent in here at any time to 
sign the leasing agreement. As soon as it's signed, I'm going 
to post the days on the computer. If your boat goes over a day 
or two, don't worry about it, I will take care of that.''
    For some reason the agent came in, grabbed the leasing 
agreement, and said, ``You are not to say a word,'' took the 
leasing agreement, 5 days later I was called, the vessel was 
red flagged, ordered back to port, the catch was seized, I was 
fined by Chuck Juliand $27,000. I called Mr. Ouellette.
    As the time went on, Mr. Julian said, ``If you don't pay 
the 27 right now, if you want to go in front of one of my 
judges, you will be paying $120 to $140,000.'' I settled on 
25,000 bucks. I was scared to death that they wouldn't give me 
the boat back, I couldn't get the boat back to send it fishing 
and pay the payments until I paid the fine.
    This Yellowtail exception letter with the Gloucester 
Auction House we've been heavily penalized, which is totally 
unconstitutional, and as far as I'm concerned, unfair. I went 
to the Fishery Service and I asked them for the letter. I had 
it on three boats. I said, ``I'm sending a boat Yellowtail 
flounder fishing.'' They said, ``You don't need it. Discard it. 
We are just going to get to rid of it anyway.'' I said, ``Are 
you sure?'' They said, ``Absolutely.'' The boat went fishing.
    After the auction house was raided, and all they got out of 
that whole thing was 40 boats that had--that didn't have, 
somewhere around 40 boats that didn't have the Yellowtail 
exception letter. My captain got called in. After he was called 
in by Gino Morrow and another agent in a little cubical, they 
said, ``If you tell us, rat out the auction house what it's 
been doing illegally, we will throw this away.'' That was my 
captain.
    After that they called me. I called Mr. Ouellette. We went 
in. They said the same thing to me, ``If you tell us what's 
been going on back at the auction house, we will tear this up 
and you won't get a fine.'' Well, I said, ``OK. Fine. I will 
tell you, I was one of the first boats to go to the auction 
house. It's the best thing that ever happened to this region.'' 
I said, ``There is nothing going on in there. If there was, I 
won't have my four vessels there. It's very simple.''
    Gino Morrow looked at me, the agent, and said, ``That's not 
good enough.'' The FedEx truck came to my house about a month 
later, $58,700 fine for not having a piece of paper aboard the 
boat that I was told I didn't need. They said that's the way 
law enforcement handles it. Just because someone at the Fishery 
Service told you you didn't need it, that's regardless. We say 
you needed it, you needed it, period.
    This past May 1st, I always take all my permits up for 
every vessel, hand-deliver it to the office up here in 
Gloucester, make sure I have everything accounted for, all the 
permits are on the boats. For some reason, somehow this same 
vessel didn't get its yearly letter of authorization to go 
fishing. I thought I had to go to the board for the boat with 
all the other paperwork. They let the boat go 8 days fishing 
out of New Bedford, 100 miles offshore on a 42-foot boat 
because this region up here is totally shut down for April and 
May.
    Mike Henry, the officer in charge, called up and said, ``We 
know where your vessel is. It's 100 miles offshore. We are 
going to have agents in New Bedford order the vessel in. It's 
going to be seized.'' I said, ``Why?''
    ``You don't have your Federal fishing permit.'' I said, ``I 
most certainly do.'' Come to find out the month prior they had 
sent me a notice that said, ``You do not have one vessel trip 
report from December on record.'' The boat was tied to the 
dock. The only thing we had to stay tied to the dock for the 
120 days out of the season, we cannot fish with the vessel. The 
captain was fishing in November, he sent in November's 
logbooks, and he sent in the December logbook that checked off, 
did not fish, and he made the mistake, he wrote the 11th month, 
not the 12th month. They wouldn't tell me that. They did not 
bring that forward until Mr. Ouellette, once again, or it was 
probably David Smith went up and tried to figure out what took 
place. They didn't give me the permit. They let the boat fish 8 
days and then called me up and red flagged the boat.
    It is criminal. I don't care what the other people have 
said here. What's taking place is criminal. We have been under 
gestapo siege from the Fishery Service law enforcement. They 
don't give you the right time of day. They come down to the 
boat constantly with weapons. They are constantly looking for 
your permits day after day after day. We leave the dock at 
three in the morning, we come back at five or six at night. All 
we want to do is go home and see our wife and kids. They won't 
let us do it. You've got to constantly show the permit day 
after day. What's taking place is, just as Steve said, un-
American. It's not good.
    Thank you.
    [The prepared statement of Mr. Burgess follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Kucinich. Thank you for being here, Mr. Burgess.
    Mr. Kendall, you may proceed.

                    STATEMENT OF JIM KENDALL

    Mr. Kendall. Thank you, Chairman Kucinich.
    I would like to reiterate what Mr. Ouellette said earlier 
and offer my thanks for the opportunity for us to provide this 
testimony. I'm sorry. I'd like to offer my thanks for the 
opportunity to offer our testimony before you. And hopefully 
something can come back to offer some relief to this industry 
that is so much a part of our lives.
    But my name is Jim Kendall and I have been a commercial 
fisherman, well, I have actively fished for 32 years. I was a 
scalloper out of New Bedford. I ran several boats. I came 
ashore because of a severe injury that wouldn't allow me to 
fish any longer. I'm lucky enough, I guess, in a manner of 
speaking, to stay within the industry on the fringes and work 
with the people that I know best.
    Over these years, I have come to hear some terrible 
stories, as well, but I'm not here to provide anecdotal 
evidence, because there are people that can give you their own 
heartfelt grief and true testaments.
    Some may wonder why I'm testifying before this committee 
because so many years have passed since I fished and actually 
had dealings with law enforcement. It's been more than 25 years 
since I was cited for my one and only violation in all my years 
of fishing. Though the years have not lessened that drama, and 
I was found guilty for exceeding what we called the scallop 
meat count. At that time it was 40 count in place, which meant 
that you couldn't produce scallops that were more than 40 to a 
pound. If you had a trip of 18,000 pounds, they would take 
average counts out of that trip, 10 of them, and then do the 
math and add them up and you had to average 40 scallops per 
pound or less on that.
    One particular trip we didn't. It was 1985. There was 
particularly bad weather, scallops froze. They didn't gain any 
moisture and we lost. But the particularly troubling point of 
that case was we went to court. We were one of the first cases, 
I guess we were somewhat of a poster child in that manner, and 
at the trial I mentioned that the officers or the agents in 
charge forgot to write down three of the counts as they were 
doing their averages, and the agents never denied that. They 
actually admitted that they did forget to write them at the 
time and put them in later.
    The judge said, So what? It didn't really matter. It was no 
consequence. We produced several other statements that we 
thought would help describe the problems inherent in that type 
of fishery management, and in the end the judge said the fine 
was $14,070.71. That was 25 years ago. That was just the 
beginning.
    That sounds small compared to what you hear here today, but 
that was 25 years ago, and the judge looked at me and told me 
we were lucky he didn't increase the fine. So there was 
definitely no chance of appeal of that particular judgment.
    Was this an unfair enforcement action? Not with the facts I 
presented, but like I say, when you look at the facts and the 
judge dismisses not writing down the three counts, I think 
there was something particularly troubling about that aspect of 
it.
    In subsequent years, I have been asked to assist other 
fishermen or vessel owners who have run afoul with the 
regulations. In each of these cases I felt, while an infraction 
may have occurred, it was never a willful or deliberate attempt 
to break the law. But the resultant penalties would belie that.
    In fact, there never did seem to be any rhyme or reason to 
most of the penalties levied or many of final settlements. A 
lot of the fines are put in with the scare tactic with the 
intent that if you get an offer to settle up, you are much 
better off to take it and run. A lot of fisherman, 
unfortunately, have had that circumstance happen.
    I've had a pretty good relationship with enforcement over 
the years, with many, if not most, of the law enforcement 
agents. It has put me at some odds sometimes with commercial 
fishermen. How can you deal with the guys that are hurting us 
so badly? Someone has to.
    I was chairman of an enforcement group called The Law 
Enforcement Working Group, which was actually authorized by the 
1996 reauthorization of Magnuson. It's been the only time that 
I know of that there was a working group like this established 
by Magnuson to take people from within the industry and work as 
an advisory panel with a commandant of the First U.S. Coast 
Guard. As such, we met usually quarterly with enforcement 
agents, Coast Guard enforcement, NOAA general attorneys, and 
fishermen. We'd all sit in a room, we'd speak informally, and 
get to some of the points and be able to deal with some of 
issues.
    Unfortunately, basically, one gentleman took offense with 
having to deal with us in that intimate relationship and began 
to forget the schedule for coming meetings. Initially I think 
he broke the Magnuson Act by virtue of him just disbanding this 
group.
    Because of my position as chairman there, I often appeared 
at a center called The Nerve Tech, which is a training center 
for Coast Guard law enforcement personnel and boarding 
officers, and we would bring industry people in to meet.
    These are the kinds of interactions where these gentlemen 
have to get together with the fishing industry to learn a 
little bit more about them rather than on the other side of the 
table where there's a pencil and paper where they are about to 
charge the fisherman.
    I tried over the years to encourage this, go back to this 
particular type of joint workmanship or cooperation, but it's 
failed to come back onto the table. So I went home to look at 
what would they consider looking at these type of arrangements 
to get these people at the table together.
    Thank you.
    [The prepared statement of Mr. Kendall follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Kucinich. Thank you, Mr. Kendall.
    The Chair recognizes Mr. Tierney for 5 minutes.
    Mr. Tierney. Thank you. First of all, thank you all for 
your testimony here today, but thank you for consistently over 
time providing us with the information that we need and the 
firsthand factual accounts of what's been going on.
    Mr. Ouellette, is it your opinion that there needs to be 
change in the statute, or is it your opinion that the current 
language, if used properly and applied properly, would allow 
for some remedy in the situation?
    Mr. Ouellette. It's an interesting question. It implies 
that somebody is actually looking at the statute and its 
intent. I assume that Dr. Lubchenco and her staff would do 
that.
    I don't believe that there is a problem with the way the 
statute is drafted, per se. The statute provides a fairly high 
limit for the setting of penalties. I believe the statute sets 
up to $100,000, but apparently Congress has given a cost of 
living on fines and it's now up to $140,000 due to that 
secondary state.
    The difficulty that I think we have is that--and I have met 
with NOAA counsel about this frequently--is their statement 
that they believe that Congress has advised them that no 
violation should be the cost of doing business. Those terms 
come up frequently. So they read into that any violation can 
theoretically be a business-ending violation. They cite the 
language in the statute and in the regulations which allows 
NOAA to assess fines and to force the reorganization--force the 
reorganization of an individual's business, which we all know 
is bankruptcy.
    Mr. Tierney. As a lawyer, did you find that language that 
they refer to in the statute?
    Mr. Ouellette. The language, I mean the authority is there. 
It's virtually----
    Mr. Tierney. I meant the language about not treating it as 
a cost of doing business.
    Mr. Ouellette. No, it's not there. Again, we all know that 
there are situations, particularly you read about the category 
2 fish cases where somebody, you know, pulls into a port with 
$5 million worth of fish, pays the $100,000 fine, laughs and 
ships off fish.
    We don't have those situations in domestic fisheries. Our 
catches are much smaller. All of these vessels are U.S. 
permitted and they all have some tie to the United States so if 
they did commit a major violation, they lose their permit, 
which actually nowadays is probably the most valuable aspect. 
There is nothing that I see that requires them to hand out a 
half-million-dollar fine because somebody filed some logbooks 
late that actually aren't even used in the science anymore.
    Mr. Tierney. Mr. Ouellette and Mr. Burgess on this, Mr. 
Kendall, you may not be able to help us, but if you can, I ask 
you to do so, are we talking about the same enforcements agents 
over and over and over again, or are we talking about who, 
regardless who the agent, is observing this kind of conduct?
    Mr. Ouellette. This actually isn't the agents who are doing 
this in most cases. The agents investigate. I will agree that 
in the last 10 years I have become aware of a more aggressive 
form of questioning to the point that my clients--we used to 
cooperate with law enforcement up until the late 1990's. My 
clients are prohibited from talking to NOAA enforcement agents. 
As soon as they call me and I know NOAA is involved, even the 
agents now know not to question the client.
    Mr. Tierney. All the agents or a specific subset?
    Mr. Ouellette. All agents.
    Mr. Tierney. You find the attitude pervasive?
    Mr. Ouellette. Yes. And we also found that increasing from 
about 1999 until I really cracked down on the policy with my 
clients, that every time a fisherman was charged with 
something, a false statement charge got thrown in. And they 
were pretty spurious, but they were throwing them in in every 
case. That's when we started seeing the criminal investigators 
come out and cards come out.
    The difficulty with the fines is that those emanate not 
from the law enforcement arm, they emanate from the General 
Counsel for Law Enforcement, and I'm not sure that we've seen 
or heard anything from that branch because they seem to be 
independent.
    But we see repeat fines, I mean ridiculous fines, out of 
the Northeast region on a regular basis. I mean, that's really 
what prompted my initial complaints to the agency and to my 
congressional delegation going back to the late 1990's.
    Mr. Tierney. Thank you.
    Mr. Kucinich. Congressman Frank.
    Mr. Frank. Mr. Ouellette, I just want to clarify what the 
message was. Mr. Tierney asked if you had a problem with the 
statute throughout. You were actually talking about the 
enforcement part. The lack of flexibility, you weren't talking 
about that? So you are saying they can improve enforcement 
without a statute change?
    Mr. Ouellette. I think you can improve enforcement without 
a statutory change. My concern is given the track record 
between the industry and this agency, I'm not sure that they 
have----
    Mr. Frank. No, I just didn't want to--we weren't talking 
there about flexibility?
    Mr. Ouellette. Right.
    Mr. Frank. You talked about the disadvantage you are at 
because you can't get the information which they used for 
setting the penalties. Is that different than other law 
enforcement situations, or are you given less information here 
than you might be if you were defending people in other 
circumstances?
    Mr. Ouellette. In my experience, when I've dealt with other 
administrative agencies--fortunately I don't do much criminal 
law--it's unprecedented because----
    Mr. Frank. It's different.
    Mr. Ouellette. Right. Basically, they take the position, we 
are attorneys, we assess the fines. Somewhere we do have a 
minor set of guidelines----
    Mr. Frank. Let me cut through this, and I think Mr. Tierney 
and I will initiate a pretty strong request to the fishery 
service that they no longer do this. This is the Federal 
Government. We are not some individual entity in a dispute. We 
have an obligation for be fair to the citizens so the Federal 
Government acts in a way that seems to be inappropriate.
    I think, if you will support us, provide us memorandum, I 
believe we will be able to insist that they provide you the 
information not for anybody to get off, but you have some kind 
of basis for all this.
    Let me say, Mr. Jones, I appreciate your staying here. Mr. 
Burgess has made some pretty strong statements. I'm now asking 
you, Mr. Jones, to look into those and tell me if you contest, 
for instance, someone asking him what he made and what the 
captain made, and then tell me if any disciplinary action was 
taken or what was done about that. Because once we hear these 
things, it's really important for us to know that people are 
not going to be doing this. So everyone specific to what Mr. 
Burgess mentioned, I would ask that you talk to them.
    Mr. Tierney asked the cost of doing business is not--this 
notion shouldn't be the case.
    Mr. Kendall, who was it that, you know, stopped coming to 
those meetings?
    Mr. Kendall. Well, former Coast Guard officer by the name 
of Captain Raymond Brown. And I think you might recall that you 
asked the admiral to appear in your office one time to explain 
his actions at that particular point in time. Captain Brown was 
a difficult gentleman to get along with. He seemed to think 
that all fisherman were violators. Those that weren't, it was 
only because he hadn't caught them yet. As a matter of fact, he 
made that statement to Ron Avila at one point. Captain Avila 
took quite a bit of offense to that. Even to this day he does. 
I like to kid him about it. But it was a serious type of thing, 
because, like I say, it was a great organization or----
    Mr. Frank. Let me ask you--to the court reporter, it's A-v-
i-l-a.
    What's the status of that, worth trying to resuscitate? Or 
is that too far gone? Is that worth trying to resuscitate or is 
that too far gone?
    Mr. Kendall. Well, the reauthorization never reappeared in 
Magnuson again and it never extended to any of the other 
council regions. But I think yes, sir, I think it is very 
important that we try to rebuild those particular roads because 
that was a way for us to interact with them on a civil level 
without getting into our criminal situations. And I think it 
worked quite well.
    Mr. Frank. Thank you. Mr. Chairman, I will yield back.
    Mr. Kucinich. Thank you very much, Congressman Frank.
    Mr. Burgess, I listened very carefully to you recounting 
your experience with enforcement. Do you feel like you were 
being treated as a criminal?
    Mr. Burgess. Pretty much, yes.
    Mr. Kucinich. Is that in talking to your colleagues who are 
fishermen, is that something that your experience is totally 
unusual, or have you ever talked to people that have had 
somewhat similar experience?
    Mr. Burgess. I don't think there is anybody in the industry 
around here that would disagree with me right now.
    Mr. Kucinich. What do you as a fisherman want to see 
changed here? This committee is an oversight committee, but 
it's also government reform. What do you want to see changed? 
We are here to listen to you. What do you want us to see 
change?
    Mr. Burgess. Right now the amount of gentlemen that are 
left in the industry, we all get along. It wasn't really that 
way years ago. Now there is a only a handful of guys left. 
Everybody trusts each other; we work together. We want to be 
respected as hardworking individuals, small businessmen. We 
want to stay in the industry.
    If you get a piece of paper and there is a date wrong or 
you don't have your paperwork in the boat, I don't want a 
$10,000 fine. I want to be able to say, yes, I have it. It's at 
home with my paperwork or call the agency, everything is good.
    The entire fleet, every owner, captain, the guys on deck, 
they are so afraid of doing one thing wrong and losing 
everything that they have ever worked for. That's not what we 
are all about. We are the environmentalists. We have rebuilt 
this fishery. We want to keep it that way. And we just want to 
be treated as honest, hardworking people.
    Mr. Kucinich. Thank you, Mr. Burgess.
    Now, Mr. Ouellette, in your written testimony you have 
said, ``Compliance, not fines should be the goal.'' I think we 
all agree. Again, can you give us three things, a reform that 
the Office for Law Enforcement would do differently to optimize 
compliance?
    Mr. Ouellette. I would hope so and my--the concern I see 
now----
    Mr. Kucinich. What can they do? Give me some examples of 
what they can do to do it better.
    Mr. Ouellette. For example, Mr. Burgess had an issue with 
days at sea. One of the problems is that NOAA, who keeps a 
record of vessels' days at sea, is often unable to tell us 
because they do an internal calculation that we don't have 
access to.
    It may be a scalloper as to how many times he dips within 
the line--I'm not sure you are familiar with it, but boats are 
tracked. They are tracked every time they leave port by an 
electronic monitoring system. NOAA is unable to give us often a 
vessel's days at sea. Yet, if you are out there, they will 
continue to issue you sailing numbers and they know exactly 
when to meet you at port to seize the catch because they know 
when you are coming in.
    There are many instances where NOAA personnel observe or 
are able to detect potential violations and they really just 
sit back and let them occur. That's a significant problem that 
I have.
    A recent case we had that they were late on their logbook 
compliance. People at the agency knew it. They said it's a 
crucial issue, they had to have this data on a weekly basis, 
yet they waited 8 months before they took any action, and the 
only action they took is not to call the boat and say, can you 
give us the number? They called NOAA Law Enforcement who issued 
a quarter-million-dollar fine.
    We have--there is really a very poor working relationship 
between the industry and the agency and that's something that 
needs to be improved.
    Mr. Kucinich. Let me followup on that.
    Do you think serious reform of OLE is possible under the 
current leadership?
    Mr. Ouellette. I'm very concerned with the ability of NOAA 
to work with this industry in a committed, cooperative fashion.
    Mr. Kucinich. Mr. Burgess, would you answer that question. 
The question is: Do you think serious reform of OLE is possible 
under the current leadership?
    Mr. Burgess. It hasn't taken place yet. It should have 
taken place years ago.
    Mr. Kucinich. Mr. Kendall.
    Mr. Kendall. I would suggest that the problem doesn't start 
at the bottom. It actually starts at the top, sir. If this is 
going to come, it's going to have to filter its way down. They 
can't continue to treat the industry as criminals, common 
criminals, and expect that the agents are going to work with 
them on a one-to-one basis. People just don't work that way. 
Once you buildup that feeling that there is something wrong 
with this person, you tend to look at them a little bit 
differently. They have.
    Mr. Kucinich. Thank you, Mr. Kendall, and I thank the 
panel. I'm going to ask----
    Mr. Frank. Can I just--can we get----
    Mr. Kucinich. I was going to go to closing statements.
    Mr. Frank. I will wait.
    Mr. Kucinich. Thank you, Congressman Frank.
    Congressman Tierney, you are recognized for your closing 
statement.
    Mr. Tierney. Thank you. First of all, thank you, Mr. 
Chairman. Again, we appreciate it a great deal that you were 
willing to come here and have this hearing in Gloucester. It 
means a lot to us and we appreciate that.
    Barney Frank, we appreciate all the work that you have done 
on this issue over the years and you are continuing to do. It 
is important.
    We appreciate the mayor and local representatives and their 
effort and everybody in the community here. I think what we 
have here today is a good example of what we have been 
screaming about for a period of time with varying and 
unsatisfactory results. We have a new Administrator. Even 
though I know some people thought that she was listening today 
and they are not quite sure she heard, we are going to keep 
working at it to make sure that what was said is heard, as 
well.
    Mr. Jones, thank you for staying here. I hope you heard it, 
including the introspection that's necessary at the top 
starting with you and then right down through all your 
personnel and working with that. This is not something that you 
can continue. It's gone on for far too long.
    We need to look at it legislatively. We need to look at the 
way the enforcement is actually exercised, and all in the 
record that you put forward today is going to help us to go 
back to our colleagues. I think the legislation is the first 
push on that and we can continue to push on how they are 
enforcing that law and take a look at it.
    We will expect the reports from Mr. Jones to the incidents, 
individual incidents, and from Mr. Zinser, the Inspector 
General, individual incidents. We are not all about looking 
back, but it's important to make sure we identify what went 
wrong and make sure that's rectified so we can go forward and 
have some knowledge. What we are going to do then is to clarify 
and correct the situation.
    Again, I want to thank you, Mr. Chairman, and Mr. Frank. On 
that, we have some work to do and we will be doing it.
    Mr. Kucinich. Thank you very much for your closing 
statement.
    The Chair recognizes Congressman Frank.
    Mr. Frank. I join my colleague--first, I appreciate Mr. 
Tierney taking up this issue and then for the chairman to come 
out from his district and from Washington, I appreciate it.
    I did want to say there is occasional goodness. Mr. Kendall 
reminded me when I became the representative of a fishing 
industry, New Bedford, in 1992 and one of the first things I 
learned about was the meat count. We did get that abolished. So 
that is no longer there. But it's relevant because it was an 
inherently difficult means of enforcement and it reinforces my 
view of the notion that you have to get the law right because 
there's some things that are always going to lead to problems.
    Beyond that, let me reiterate, law enforcement is a tough 
business. And no one should take this as any denigration of 
people who are in the law enforcement business. These are men 
and women who do a tough job. They do a dangerous job 
sometimes. It's not their fault if they are put in 
inappropriate situations. If people who are in law enforcement 
are put in a situation which primary job is to be elsewhere, 
it's not necessarily a criticism of them. Obviously, there are 
some individuals that commit abuse. So it's important, while 
maintaining respect for the whole operation, to be able to deal 
with that.
    So I do look forward to hearing about how this is going to 
be corrected and I have to say, Mr. Jones, and to Dr. 
Lubchenco, Mr. Schwaab, who is here, who is going to be head of 
NMFS, I have not yet heard a response proportionate to the 
problem that has to be resolved. We will be looking at that 
carefully, but I think there is a natural tendency to kind of 
denigrate the value, the seriousness of the problem.
    Finally, Mr. Tierney and I, we look forward to working with 
our colleagues. People say, Oh, I don't like to say I told you 
so. That's a lie. Everybody loves to say I told you so when you 
get those opportunities. I find as I get older saying I told 
you so is one of the few pleasures that does not diminish with 
age. So I like to say it.
    But Mr. Tierney and I voted against the Magnuson Act in 
2006 when it was passed by the lame duck Congress signed by 
President Bush. It was, I think, too rigid and inflexible then. 
I do not believe you can solve all of these problems that are 
also dealing with the statute. So we will continue to press for 
improvements in the administration within the statute, but we 
will also bring this back and we will be meeting soon with a 
group of our colleagues up and down the Atlantic coast, not 
just the Northeast, but from Maine to Florida and I hope 
elsewhere as well because we are determined to begin the 
process of amending the Magnuson Act. That's an essential part 
of fixing this problem.
    Mr. Kucinich. I thank my colleagues, and I want to say that 
for a congressional investigative subcommittee to have a field 
hearing anywhere, just doesn't happen. The reason why we came 
here to Gloucester is because Congressman Tierney expressed to 
me his great concern about arbitrary, aggressive, even abusive 
enforcement practices.
    I agree with my colleague, Mr. Frank. We are not against 
law enforcement. We make laws. Laws are enforced. That's part 
of the cycle that government's involved in. But what brought a 
congressional investigative subcommittee here were a number of 
red flags that we saw in the IG report and that came from 
talking to dozens of people we interviewed prior to this 
hearing.
    So, of course, to Mr. Frank and other Members around the 
seacoast, this is an ongoing interest, and as it's an ongoing 
interest in this investigative subcommittee, we are going to 
retain jurisdiction.
    You know, when I heard Mr. Burgess's account, and I'll just 
say this to Mr. Jones, and I'm glad you stayed to listen, the 
gotcha climate that he portrays, if you had been treated as a 
witness with a gotcha, you would have been humiliated before 
this subcommittee, but we don't do that.
    You have to realize when you have the kind of power that 
law enforcement does have, you enforce the law, but you also 
have to be careful that it's not done in a way that seems 
partial, arbitrary and doesn't--if you are going to put 
somebody out of business, you better have a damn good reason.
    This subcommittee is going to continue to look at this. I 
want the Administrator to understand that we are not going to 
let this go. And I look forward to asking some more questions. 
We will submit some followup questions.
    I want to thank you for your presence here. I want to thank 
Mayor Kirk and the city of Gloucester for welcoming us in this 
beautiful structure here, this historic structure. This town 
has been a part of the history of the United States and its 
contribution to commerce for hundreds and hundreds of years, 
and if this subcommittee has anything to do about it, and 
certainly Congressman Tierney does and will, we are going to 
look forward to seeing you continue to do your work for many 
years to come.
    This subcommittee has adjourned.
    [Applause.]
    [Whereupon, at 1:15 p.m., the subcommittee was adjourned.]
    [Additional information submitted for the hearing record 
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