Commerce Secretary Announces Additional Reforms To Overhaul NOAA's Law Enforcement System

Underwater Times: Commerce Secretary Announces Additional Reforms To Overhaul NOAA's Law Enforcement System
WASHINGTON, D.C. -- U.S. Commerce Secretary Gary Locke today announced that he would allow fishermen and businesses until May 6, 2011 to submit complaints about potentially excessive enforcement penalties to the Special Master for review, as well as request stays of their penalties as part of the complaint process. This is part of a series of ongoing improvements to NOAA's Law Enforcement System. The Secretary and NOAA Administrator Jane Lubchenco also announced policy changes aimed at strengthening, simplifying and improving both the enforcement and regulatory process for fishermen and businesses.

The announcement comes on the heels of Locke's appointment of a Special Master to review enforcement cases, and significant changes implemented by NOAA to policies, procedures and oversight guidelines in response to recommendations from the Commerce Inspector General based on a review of the enforcement program he conducted at NOAA's request last year.

"Additional review is necessary to ensure NOAA's enforcement system is accountable and transparent. As a former prosecutor, I expect our law enforcement program to uphold high standards and maintain the public's trust," Locke said. "Recently, Judge Swartwood indicated that reviewing a wider pool of cases would be appropriate. I decided to act immediately. We want to provide those fishermen who believe they have been wronged with an opportunity to have their complaints heard."

The additional enforcement reforms taken by Secretary Locke and NOAA include:

Opening an appeal window to allow fisherman and businesses that wish to come forward to submit a complaint to the Special Master.
Allowing fishermen and businesses to request a stay of penalty payment as part of the complaint process.
Issuing a new nationwide penalty policy that provides consistency and greater transparency on the assessment of penalties and permit sanctions throughout the country.
Finalizing the Asset Forfeiture Fund (AFF) Use Policy that greatly restricts the uses of the Fund in order to ensure there is no conflict of interest – real or perceived – with the use of the Fund.
Launching an independent audit of the AFF that will include a targeted review of transactions going back to 2004 to determine if there was fraud or other illegal activity.
Working with fishery councils, fishermen and stakeholders to streamline and simplify fishing regulations.

"We are committed to sustaining and growing fishing jobs, which are the lifeblood of so many of our coastal communities. The reforms put in place thus far and announced today are vital to ensuring the fair and effective enforcement we all need to succeed," said Dr. Jane Lubchenco, Under Secretary of Commerce for Oceans and Atmosphere and NOAA Administrator.

Open Review Window

In order to ensure that any claims of possible excessive penalties are heard by an impartial party, Secretary Locke is allowing fishermen and businesses to submit their complaints to the Special Master,who will determine if cases are eligible for his review. All complaints must be postmarked by May 6, 2011. To be eligible, the Notice of Violation and Assessment (NOVA) must have been issued on or after March 17, 1994; settled or otherwise resolved before February 3, 2010; and a civil penalty must have been paid. In addition, the person making the complaint must certify the alleged facts are true.

Cases are not eligible for review if they were decided by a federal district court judge, or are currently pending before for an Administrative Law Judge or the NOAA Administrator. The Special Master will review cases that meet the criteria and make recommendations to Secretary Locke regarding whether the civil penalties imposed and paid in those cases should be remitted or modified.

Penalty Stay

As part of the complaint process, fishermen can request to have the Special Master recommend whether payment of the penalty should be stayed while their case is under review. In addition, Secretary Locke has stayed the currently penalty obligations of those complainants whose cases have been under review and had requested a stay.

Final Penalty Policy

The final Penalty Policy ensures that there is a more consistent standard for assessing penalties for violations, and greater transparency and clarity for the regulated community. The policy addressed the problems identified by the Commerce Inspector General by establishing one penalty and permit sanction matrix for each major statute that NOAA enforces, to be applied nationally, with narrower penalty and permit sanction ranges. This simplified approach provides NOAA attorneys with greater guidance in recommending penalties, and assures fairness and consistency of approach across NOAA statutes, across fisheries, and across the country. Further, the basis for penalties calculated under the policy will be included in charging documents filed by NOAA. This final policy will be applied to cases charged effective today.

Asset Forfeiture Fund (AFF) Use Policy

The final policy limits the ways NOAA's enforcement programs – both the Office of Law Enforcement and the Office of General Counsel for Enforcement and Litigation – can use money from the AFF that holds penalties collected for violations of federal marine resource laws.

The final policy prohibits half of the AFF's historical uses, including the purchase of vehicles and vessels; paying for travel that is not related to investigations, proceedings or training; or paying for training unrelated to an integral part of an employee's job. By restricting its use, the policy ensures there is no appearance that penalties might be increased to raise the amount in the AFF. The policy continues expanded use of AFF for NOAA's compliance assistance, collaboration and outreach activities. The policy is being made final today, following a 60-day public comment period.

"Since last fall, our use of the Asset Forfeiture Fund has been open, transparent, limited, and responsible, and this policy will ensure it stays that way," said Dr. Lubchenco, who requested the Department of Commerce Office of Inspector General review NOAA's law enforcement policies and practices after hearing concerns raised by fishermen and elected officials. "We received comments advising us both to limit and expand our potential uses for the fund. However, we believe the policy strikes the right balance by ensuring no conflict of interest – real or perceived – is associated with the use of the fund while continuing to promote a fair and effective enforcement program."

The policy is part of a suite of changes NOAA has made over the past year in how it manages the AFF, including higher-level oversight and prior approval for any expenditure of $1,000 or more.

Regulatory Overhaul

The Secretary's Office has asked NOAA to ensure that, as part of the Administration-wide review of regulations to reduce regulatory burdens and increase the openness and accessibility of government, the agency focuses on fisheries regulations and works with regional councils, fishermen, and other stakeholders to make these rules and regulations simpler and easier to follow.

Economic Assistance Outreach

"We know that by ending overfishing and rebuilding stocks, we will improve economic conditions for fishermen, and create better, more stable and sustainable jobs and opportunities in our coastal communities," Locke said. "But we also recognize that we must help fishermen and fishing communities who are impacted during these challenging economic times."

Secretary Locke announced he will deploy Economic Development and Assessment Teams to visit select communities in New England. Commerce's Economic Development Administration, working in partnership with other federal agencies, will meet with local community and business leaders to assess current and emerging economic issues, identify new and existing resources to leverage in order to support local economic development capacity, and develop tangible economic development solutions for the region.

The Department is prepared to work with Massachusetts and other New England states to identify and more finely analyze data regarding fishermen and communities that may be in need of targeted assistance.

"Many of America's fishermen and their families face extremely challenging economic times. While we work to end overfishing and rebuild stocks, we are committed to helping fishermen during this difficult period of transition," said Dr. Lubchenco.

"I have met with fishermen, had ongoing conversations with the Congressional delegation and governors and I have heard you," Locke said. "We are committed to doing everything we can to do right by fishing communities and the families whose livelihoods depend on their success."

In addition to these specific steps, NOAA will continue to work towards other improvements, including:

Examining our fisheries science and stock assessments to determine how to improve them, including strengthening cooperative research.
Improving our communications with fishermen and responsiveness to fishing communities.
Continuing to improve our enforcement programs through the implementation of the national penalty policy and the Asset Forfeiture Fund policy and evaluating how to simplify regulations that affect the fishing industry.

Today's announcement builds on NOAA's previous actions to reform every aspect of its enforcement program. In response to reviews of the program by the Inspector General that were requested by Administrator Lubchenco, NOAA has implemented a number of sweeping changes since January 21, 2010, including:

New policies and procedures such as a new vehicle policy for the Office of Law Enforcement;
New leadership in the Office of Law Enforcement and the Office of General Counsel for Law Enforcement and Litigation;
Greater oversight of lawyers and enforcement agents; and greater oversight of funds spent on the enforcement program

To get more information on the reforms to NOAA's enforcement program, visit www.noaa.gov

The mission of NOAA Office of Law Enforcement and the General Counsel for Enforcement and Litigation is to ensure compliance with the laws and regulations enacted to conserve and protect our nation's marine resources.