New Bedford Mayor Scott Lang wrote to Commerce Department Inspector Genera Todd Zinser "to reaffirm the critical need for a full review of the rule making process for commercial fishing as administered by the US Department of Commerce." The mayor highlighted the following new information that has emerged since his last correspondence with the Inspector General. At that time, the Inspector General expressed a reluctance to investigate while there was ongoing judicial action. The mayor wrote "As the lawsuit has now closed, I respectfully urge you to commence your review of the rule making processes of the Department of Commerce’s agencies NOAA and NMFS and related fishing councils, especially the NEFMC."
The text of the mayor's letter follows:
August 8, 2011
Todd J. Zinser
US Department of Commerce Office of Inspector General
1401 Constitution Avenue Washington, DC 20230
Dear Mr. Zinser:
I write to you today to reaffirm the critical need for a full review of the rule making process for commercial fishing as administered by the US Department of Commerce. In your letter dated January 3, 2011 (copy enclosed), you expressed the shared view that such a review is merited, but indicated that you could not proceed while the litigation filed by the cities of New Bedford and Gloucester and other plaintiffs in United States District Court in Boston (City of New Bedford, et al. v. Locke, et al., Docket No. 1:10-cv-10789-RWZ) was pending. As you may now be aware, the court in that case issued a final decision on June 30, 2011. Under the limited judicial review available in such administrative cases the plaintiffs did not prevail. However we, and many others, believe that the reasons meriting your office’s review not only still remain, but are in fact now stronger than ever.
Since providing you with the “very compelling evidence” in our former requests of the need for investigation (please see copy enclosed) additional information has come to light. We would like to bring the following new information to your attention to highlight the renewed importance of your office’s review:
· In our law suit (City of New Bedford, et al. v. Locke, et al., Docket No. 1:10-cv-10789-RWZ) we filed motions for discovery and supplementation of the administrative record (Case: 1:10-cv-10789-RWZ, Documents 30, Filed 09/09/10 and 39, Filed 10/13/10) which describe systemic problems in fisheries management by the regulating authorities. These motions provide evidence that further support an external audit by the IGO and are enclosed herein for your review and consideration.
· As our previous briefing package to you indicated, there is evidence supporting our concern about the extent of bias within the agency in favor of environmental groups and against the fishing industry, and the true scope and degree of the influence of environmental groups over agency rulemaking. Several documents disclosed to this city in response to FOIA requests also appear to further validate our concerns. For example, a series of e-mails among NOAA staff discuss communications by Jane Lubchenco through Patricia Kurkul instructing NOAA staff to prepare materials for Dr. Lubchenco's attendance and presentation at an Oceana (an environmental group) Board meeting on December 1, 2009. One staffer comments that the "tasking seems somewhat unusual." (copy of e-mails enclosed). This is but one example of many.
· In April 2011, Preston Pate and SRA-Touchstone Consulting Group issued A Review of the New England Fishery Management Process, a report of a review commissioned by NOAA/NEFMC in September 2010. This report identified a number of serious rulemaking issues requiring further review and corrective action. One of the report’s overall findings was that NMFS had abandoned as a mission “development of the commercial fishing industry” (Pate at 4, 13) and that NERO needed to “increase industry participation” (Pate at 18). That NMFS had abandoned as a mission development of the commercial fishing industry is not surprising, given the law enforcement bias and abuses uncovered and examined by you and Judge Swartwood. Why would an agency assist in the development of an industry it viewed as the enemy, to be punished and eliminated at worst and barely tolerated as a concern merely incidental to conservation at best? This report also found that the agency’s science was not adequate for the demands of the new management systems (i.e.; catch share and sector based quota systems) imposed upon the fishery. For example,
Delays in stock assessments hinder sector management (Pate at 11, 13)
There is little consistency or standards across PDTs, Advisory panels (Pate at 16)
NMFS needs to consider allocating resources to address bottlenecks in the science. (Pate at 5, 15). This problem demonstrates NOAA’s continuing pattern of misallocating resources and allocating resources for inappropriate reasons – a problem previously identified by your office. For example, your office found NOAA employed a disproportionate number of criminal investigators at a higher pay scale than civil investigators despite the fact that it enforces primarily civil penalty laws. In similar fashion, NOAA has in its budgeting moved money away from basic science and research and into the promotion of a particular management method: catch shares. Rather than allocate money to ensure that the best science is made available and then allowing the best science to identify the management method that best fits the facts, NOAA is choosing to simply skip the “best science” step and dedicate its resources to a favored management method, spending money to ensure that it is accepted and used. This is backwards and fails to ensure that the “best science” is available.
NMFS needs to integrate and simplify IT systems (Pate, 14) and give stakeholders better access to data (Pate, 17), as well as improve collaboration with external research organizations (Pate at 14).
NMFS and NERO needs to “scale up the collection and use of socioeconomic data” in FMPs and decision-making in general (Pate, 4, 15, 18). This finding is sadly ironic in light a series of e-mails between NEFMC staffers Tom Nies and Deirdre Boelke in October of 2009 (please see copies enclosed). These e-mails were disclosed by NOAA in response to a FOIA request by the City of New Bedford. In them, Ms. Boelke sends Mr. Nies a copy of a report prepared by NMFS scientist Dr. Julia Olson for an amendment of a scallop fishery. Dr. Olson’s report analyzes the socioeconomic effects in any fishery of quota-type management systems, a category that includes the catch share / sector method implemented by Amendment 16.
In her report, Dr. Olson reviews the existing scientific literature and concludes that such systems generally result in large-scale industry consolidation, loss of small businesses, loss of employment, and decreases in quality of life. Upon reading the report, Mr. Nies e-mails Ms. Boelke: “I've only read the first ten pages and I'm depressed already. Think any of this will be mentioned at our Bretton Woods conference? I wish she would have written something like this for A16 and sectors." [emphasis added]. Ms. Boelke responds: "No I doubt it will be discussed…..and consolidation is consolidation … sectors, IFQ, stacking…." Mr. Nies writes back that he is considering being the "skunk at the garden party" and asking some "questions prompted by her summary." It is concerning that the detailed discussion provided by Dr. Olson on the socioeconomic impacts in the scallop FMP was not included in Amendment 16. In the lawsuit, the City of New Bedford asked the court to include Dr. Olson’s report in the administrative record for Amendment 16. NOAA objected, claiming that because the report was prepared for the scallop fishery, it was irrelevant to the groundfishery.
As the e-mail exchange demonstrates, this objection is specious. While the court in our case declined to supplement the administrative record, your office’s jurisdiction is broader than the narrow scope of judicial review in administrative cases. NMFS had a summary of the existing scientific literature on this topic and did not need to conduct any new studies itself or gather any data. Dr. Olson herself performed this literature review, and also worked on the same socioeconomic impact section of the FIS/EIS for Amendment 16. Yet she chose not to perform even the minimal and commonly used step of simply copying and pasting this report from the scallop document into the Amendment 16 document. This raises several questions: o Who made the decision to include this report in the scallop document but not in the Amendment 16 groundfishery document? o With whom did Dr. Olson discuss this? o Why does Ms. Boelke feel that the report is unlikely to be discussed? o Why does Mr. Nies characterize himself as being the “skunk at the garden party” if he mentions this report? At best, the omission of this report represents a failure to use existing resources consistently. At worst, it indicates a deliberate decision to omit known science from documents used to inform the public and agency policymaking. At present, only your office has the ability to interview staff and ask these questions. As you know from your investigation of the law enforcement abuses, personal interviews are sometimes necessary to uncover a truth that is not always apparent from the administrative record alone. NMFS needs to develop a performance management system to track progress/performance of decisions (Pate 4, 12).
NOAA has chosen to track only gross revenues as a performance measure of the success of the catch share/ sector system, a method which inexplicably omits known costs. Gross revenue is meaningless unless costs are also considered. In an instance of entirely circular logic, NOAA has chosen to use in budget reports to Congress the number of fisheries adopting catch share /sector type systems as its own performance measure. The Pate report finding highlights NOAA’s need to develop objective and meaningful performance measures. I would like to take the opportunity to commend you for your investigation of the enforcement division of the US Department of Commerce. You exposed clear abuses in the system that are now starting to be remedied. Government credibility on enforcement matters has grown because your office has shown the public in general and fishing communities in particular that government is willing to examine, in a thorough, objective and transparent way, government agency operations.
Such scrutiny is crucial to our system of government. However, the agency’s rule making processes remain an area that continues to engender an extraordinary level of mistrust. As this area has not yet been examined by your office and has the power to eliminate and significantly alter U.S. industries and communities, it is our belief that an official examination by your office, with the reputation for thoroughness and fairness that your office has earned, would greatly contribute to a sense among the public that the “disinfectant” of sunshine has been duly applied. Judicial review of agency action is by its nature very limited in scope, and cannot address many issues that are within your office’s purview, ability and expertise.
As the lawsuit has now closed, I respectfully urge you to commence your review of the rule making processes of the Department of Commerce’s agencies NOAA and NMFS and related fishing councils, especially the NEFMC.
Thank you for your consideration.
Sincerely,
Scott W. Lang
Mayor