COMMERCE
Subscriber Services
Classified Ads
Subscribe
Advertise
NEWS
This Month
Editorial
Letters
F/V Safety
Past Issues
ABOUT US
Contact Us
Latest Issue
Subscribe
History
MORE CONTENT
CFN Archives
Links
Each month exclusively in the PRINT edition of CFN
Along the Coast
Ask the Lobster Doc
Bearin’s
Classifieds
Coming Events
Editorial
Enforcement Report
FISH SAFE
Fleet Additions
Letters
Lobster Market Report
New Boats
News Catch
Quahog Market Report
|
Commercial Fisheries News
Volume 33 Number 8
April 2006
Failure to file timely Fishing Vessel Trip Reports can net big fines
GLOUCESTER, MA - Rhode Island fisherman Greg Duckworth got the shock of his life last September when he opened a registered letter from the NOAA Office of General Counsel and found that the agency planned to fine him $280,000 and suspend his vessel and operator permits for two years for failing to comply with fishing vessel trip report (FVTR) regulations back in 2002 and 2003.
Duckworth admits to not always filing his FVTRs on time, but said he had never heard a word from authorities to indicate that he was in such egregious violation of the law.
“A $280,000 (fine) and a two-year suspension of fishing permits is a death sentence for most fishermen and their families,” he said.
The notice of violation and assessment (NOVA) listed 14 counts of failure to submit “accurate and timely FVTRs” between Nov. 15, 2002 and Dec. 15, 2003 for the fishing vessel Reaper, which fishes out of Point Judith, RI.
Stunned by the nature of the violations and penalties, Duckworth brought his situation to the attention of the media and his congressional representatives.
Searching through the Enforcement Report in back issues of Commercial Fisheries News, Duckworth said he found numerous violations of FVTR regs, but none that resulted in such high fines and sanctions.
In a Jan. 8 letter to US Rep. James Langevin (D-RI), he wrote, “I have discovered that others have been charged with the same violation as me and were given written warnings with no civil fines. This is very disturbing to me. I feel that I have been singled out for a case of malicious prosecution.”
Duckworth recently agreed to settle the case, saying he felt he had no choice because he had serious reservations about being able to receive a fair trial in front of a National Oceanic and Atmospheric Administration (NOAA) administrative law judge.
The settlement did away with the fines and instead resulted in 32 months worth of permit sanctions to be served between Duckworth’s two boats – the Reaper and the True American – and a requirement that the boat fishing must carry and use a vessel monitoring system (VMS).
However, his situation raised some important questions about how fisheries violations are handled by the NOAA Office of General Counsel.
Circumstances
NOAA attorney Chuck Juliand, who prosecuted the case against Duckworth, said that when deciding on fines and sanctions, he and the rest of the general counsel staff follow the law and a penalty schedule drawn up by the agency.
Quoting from the Magnuson-Stevens Fishery Conservation and Management Act, Juliand said that NOAA attorneys are required to: “take into account the nature, circumstances, extent, and gravity of the prohibited acts committed and, with respect to the violator, the degree of culpability, any history of prior offenses, and such other matters as justice may require.”
The act also allows attorneys to consider “any information provided by the violator relating to the ability of the violator to pay,” provided that the information is submitted at least 30 days before an administrative hearing.
“The same analysis goes into permit sanctions,” Juliand said. “Every case is different.”
NOAA is currently allowed to levy civil penalties ranging from $5,000 to $130,000 for each violation under the Magnuson-Stevens Act, he said. According to the act, “each day of a continuing violation” amounts to a separate offense.
Under this schedule, Juliand pointed out that he could have set the original fine in Duckworth’s case a lot higher than he did.
Excessive fines?
Beverly, MA-based maritime attorney Stephen Ouellette did not handle Duckworth’s case but wasn’t surprised to hear about the NOVA’s high fines and sanctions.
“We all know there was a time when people looked at fines as the cost of doing business,” he said. “Now, the agency can put you out of business. Clearly, no small boat owner can pay $280,000 for logbook violations.”
Ouellette said that over the last decade fishermen and their lawyers have been seeing an acceleration in fines for minor infractions that, when multiplied over time, become “astronomical.”
“Ten years ago, a closed area case would result in a $5,000-$10,000 fine,” he said. “Today, a fisherman who mistakenly crosses over the corner of a closed area could be looking at a $30,000 fine.”
With the increasing complexity of the regulations, the risk of getting in trouble for a mistake is greater than ever.
“On the VMS issue, people were confused over (what area to) designate. We did see some warnings but, for the most part, it’s not unusual to see NOVAs of a half-a-million dollars or more,” he said. “It’s rapidly approaching being nonconstitutional.”
The 8th Amendment to the US Constitution makes this simple statement on the subject: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
Who gets prosecuted
Another reason Duckworth objected to the NOVA he received was that he believes it’s not uncommon for fishermen to file FVTRs after they are due.
Under current regulations, most federal permit holders in the Northeast are required to mail in their FVTRs no later than the 15th of the month following any trip. For example, the paperwork for all trips taken in the month of May has to be in the mail by June 15.
Further, if a vessel did not fish for an entire calendar month, fishermen must submit a “did-not-fish” report within the same timeframe.
The paperwork involved in filing FVTRs has been described as tedious and time-consuming.
According to federal officials, there are so many fishing vessels and so many regulations that it is just not possible to prosecute all violations.
There are, however, several ways that a potential violator can be brought to the attention of National Marine Fisheries Service (NMFS) law enforcement investigators.
Permit renewal
The NMFS Northeast Region’s Office of Fishery Statistics staff checks the status of FVTR compliance of as many permit holders as possible before permit renewal deadlines, according to office Director John Witzig.
“There’s an excellent chance that everyone will get checked once a year,” he said.
Andy Cohen, special agent-in-charge of the NMFS Northeast Region’s Office of Law Enforcement (OLE), said his staff learns about possible violations from a variety of sources.
Typically, though, the law enforcement staff gets a batch of referrals from the Office of Fishery Statistics.
“We’ll triage the list and pick out what appear to be the most egregious and then we triage that again,” Cohen said. “Just as an example, if we get a list of 15, we’ll pick five, and then go after two or three.”
And if the investigation leads law enforcement to think the violation is serious enough, “we refer them to NOAA General Counsel,” he said.
Juliand described another way a fisherman’s FVTR filing practices are likely to come under the scrutiny of his office or law enforcement.
“People tend to get looked at when they commit another violation,” he said.
And a case has to be as solid as possible before the general counsel’s office will take it on.
“I have to get up in front of a judge and prove it,” Juliand said.
Time line
As to how far back NOAA General Counsel can assess fines for violations, the answer is five years.
“We typically try not to let it go that long but sometimes a big case can take that long,” Juliand said.
The NOAA attorney was plain spoken about his take on failure to file accurate and timely FVTRs.
“We’re not looking to nab people because they’re two days late. Anyone can be behind in their paperwork. But this is a heavily regulated industry,” Juliand said. “Reports are important and they need to be filed. The regulations and logbooks speak for themselves.”
Complaints
Cohen added that if fishermen feel they are being unfairly targeted by law enforcement agents, they have recourse through the Office of Professional Responsibility, which has been established within the headquarters of the NMFS OLE.
“It is a very structured process,” Cohen said. “Anytime an allegation is made, it is investigated per a set of guidelines and pursued vigorously.”
According to the OLE web site, anonymous complaints can be made. However, OLE personnel try to obtain contact information in order to conduct a thorough investigation into the alleged violation. Once a complaint is filed, you will be personally contacted by the investigator in the case.
The NMFS OLE is accredited through the Commission on Accreditation for Law Enforcement Agencies, or CALEA.
An internationally recognized body, CALEA promotes best practices within law enforcement organizations and lists among the benefits of accreditation “improved service delivery” and “increased accountability throughout the agency.”
On its web site, OLE states that it was the first federal law enforcement agency to attain accreditation – in July 2003 – and the only “entirely federal law enforcement agency that has been reaccredited.”
Cohen said that he is sensitive to criticism of his officers and will not tolerate inappropriate behavior.
“Most often we find that the agents were acting within policy,” he said. “But if they are not vindicated we will take action.”
Cohen said that anyone with a complaint should call him at (978) 281-9213.
Inquiries to the Office of Professional Responsibility should be directed to OLE Deputy Chief Mark Spurrier at: 8484 Georgia Ave., Suite 415, Silver Spring, MD 20910; phone (301) 427-2300.
Lorelei Stevens
back to story list
|
|
Tell us what you think.
