New NOAA chief upholds auction action
But judge reduces fines, closings

By Richard Gaines
Staff Writer


A finding by the nation's former top fishing official that tote tags and tally sheets are legal records and the Gloucester Seafood Display Auction falsified them in 2004 to sell an extra 75 pounds of cod was upheld yesterday.

But Jane Lubchenco, the nation's newly installed top official for oceans and fisheries, also upheld an administrative judge's finding that the penalties sought by the National Marine Fisheries Service were excessive.

Lubchenco agreed with the November 2008 finding of Administrative Law Judge Michael Devine that the auction, the dominant platform for the sale of fish in the region's No. 2 volume port, should be fined $10,000 and forced to close for 20 days "spread out over one year."
NMFS, which in February filed a new and far broader set of charges against the auction, had sought a $120,000 fine and a 90-day closing for the mislabeling in the cod case.

Lubchenco's ruling rejected the auction's appeal of Devine's ruling, and NMFS' appeal to reinstate its recommended level of penalties.
Devine's ruling reversed an early ruling by the hearing Judge Peter Fitzpatrick, who had thrown out all NMFS charges against the auction.
After NMFS appealed up to the apex of the administrative ladder, Devine was ordered by Lubchenco's predecessor, Conrad Lautenbacher Jr., to overturn Fitzpatrick and find for NMFS. Lautenbacher resigned as administrator of the National Oceanic and Atmospheric Administration last fall, and Lubchenco, President Barack Obama's nominee to head the agency, was confirmed by the Senate and began work late last month.
Lubchenco's ruling exhausts the stops within NOAA and Coast Guard administrative court system that the agency contracts to use for the prosecution of its claims against the fishing industry.
The Coast Guard administrative law system has been under fire by the news media as biased and possibly corrupt; the House of Representatives voted in 2008 to dismantle the entire system, but the effort died in the Senate.

Auction President Larry Ciulla said he intended to appeal Lubchenco's ruling into the federal court system.
Ciulla noted that Fitzpatrick, the Coast Guard judge who heard the case and ruled on the claims against the auction, had found no violations, and described the subsequent appeals by NMFS to Lautenbacher, and the resulting reversal as "absolutely bizarre and absurd."

Lubchenco's finding would leave the auction with a record of culpability for violations as it prepares to defend itself against a massive 59-count allegation that it routinely accepted for sale fish that were illegally landed either because the boat was not permitted to catch the species or the weight exceeded what was permitted.

NMFS' recent NOVA or "notice of violation and assessment" fed into a widespread sense of a vendetta by the agency against the essential shoreside platform for the sale of between 15 million and 22 million pounds of fish landed in the port.

On Feb. 26, leaders of the Massachusetts Senate and House of Representatives along with 17 lawmakers from fishing districts petitioned the congressional delegation for an investigation into NMFS' enforcement actions by the U.S. Inspector General.
"For too many years," the legislators' letter asserted, have come complaints "detailing overzealous and intimidating enforcement practices and vindictive behavior of NOAA and NMFS enforcement."

The letter said only protection provided by Congress and the Inspector General "will allow the fishing industry to speak openly and freely about the type of behavior that they have had to endure without fear of retaliation."
At her confirmation hearing, Lubchenco described the relationship between NMFS and the fishing industry as "seriously dysfunctional," and promised to fix it.

Feeding the alienation is a draft Interim Rule proposed in January by Patricia Kurkul, NMFS' regional administrator, which would severely restrict fishing for the coming year.
Lubchenco agreed to review the Interim Rule which has been condemned as a potential death sentence for the industry by the region's coastal coalition in Congress.

Announcement of the rule could come any day. It must be issued by April 15 to allow for two weeks notice to the affected fishermen, since it will take effect May 1, the start of the fishing year.

The original case against the auction on which Lubchenco ruled yesterday turned on NMFS' insistence that the tote tags and tally sheets affixed to the plastic tubs of fish from the boats are legal records.
In early 2004, NMFS agents overseeing unloadings at the auction alleged that an employee had lowballed a tote tag, writing 500 pounds on a tub of cod when a later weighing and report to NMFS demonstrated that the tub actually had 575 pounds of cod.
After a hearing — the equivalent of a trial — administrative Judge Fitzpatrick rejected the case against the auction.

"A review of the evidence here reveals that neither the original tote tag nor tally sheet in issue constitute a record upon which the auction bases its detailed report required to be submitted to NMFS," Fitzpatrick wrote.

He found that both tote tag and tally sheet are "preliminary items used for internal purposes" of organization and processing. "More importantly," Fitzpatrick wrote, the auction had other systems for recording and reporting the actual weights to NMFS. The agency's decision to pounce when it did to interrupt the process on the day of the disputed cod prevented the auction from completing its work at finding the precise weight of the fish in question.

NMFS appealed to Lautenbacher. On May 7, 2008, he overturned Fitzpatrick's opinion, found that the tote tags and tally sheets were legal records and found the auction guilty as charged.
He kicked the case back down for the imposition of penalties.
By then, Fitzpatrick had retired, and the remanded case — with legal issues resolved by the head of the agency that brought the case — was assigned to another Coast Guard administrative judge, Michael Devine.

Devine reasoned that NMFS had fabricated an exaggerated dark past history to the auction in its presentation of the case, when in fact, there was only one previous case and that involved the auction's accepting responsibility for the scheming of a low-level employee.
NMFS' lead prosecutor, Charles R. "Chuck" Juliand, had tried to convince the judge that the auction had been caught on 24 separate violations instead of the one scheme involving 24 boats.
The earlier case "should not be magnified beyond its actual significance," Devine ruled.

Although he was precluded from disputing Lautenbacher's over-ruling that the totes were legal records, Devine rejected Juliand's claim that the mismarking was "intentional."
Moreover, Devine found that the difference between the actual weight of the tote and the amount written on the tag "would seem to be relatively small."
In cutting back the proposed penalty against the auction from $120,000 to $10,000, and the shutdown time from 90 days to 20, to be served at Ciulla's discretion, Devine said the level of punishment sought by NMFS "appears to exceed the amount necessary to provide necessary deterrence."

He rejected Juliand's argument that the auction was a repeat offender that needed to be severely punished.

"An extensive pattern of ongoing violations has not been proven," he wrote. "Instead, in this matter, there is a single event regarding the fish that there were not proper documents for their actual weight."
It was this decision that both the auction and NMFS appealed and Lubchenco allowed to stand.


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