[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
SETTING THE BAR FOR
ACCOUNTABILITY: IMPROVING
NOAA FISHERIES LAW
ENFORCEMENT PROGRAMS
AND OPERATIONS
=======================================================================
OVERSIGHT HEARING
before the
SUBCOMMITTEE ON INSULAR AFFAIRS,
OCEANS AND WILDLIFE
of the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
__________
Wednesday, March 3, 2010
__________
Serial No. 111-45
__________
Printed for the use of the Committee on Natural Resources
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COMMITTEE ON NATURAL RESOURCES
NICK J. RAHALL, II, West Virginia, Chairman
DOC HASTINGS, Washington, Ranking Republican Member
Dale E. Kildee, Michigan Don Young, Alaska
Eni F.H. Faleomavaega, American Elton Gallegly, California
Samoa John J. Duncan, Jr., Tennessee
Frank Pallone, Jr., New Jersey Jeff Flake, Arizona
Grace F. Napolitano, California Henry E. Brown, Jr., South
Rush D. Holt, New Jersey Carolina
Raul M. Grijalva, Arizona Cathy McMorris Rodgers, Washington
Madeleine Z. Bordallo, Guam Louie Gohmert, Texas
Jim Costa, California Rob Bishop, Utah
Dan Boren, Oklahoma Bill Shuster, Pennsylvania
Gregorio Sablan, Northern Marianas Doug Lamborn, Colorado
Martin T. Heinrich, New Mexico Adrian Smith, Nebraska
George Miller, California Robert J. Wittman, Virginia
Edward J. Markey, Massachusetts Paul C. Broun, Georgia
Peter A. DeFazio, Oregon John Fleming, Louisiana
Maurice D. Hinchey, New York Mike Coffman, Colorado
Donna M. Christensen, Virgin Jason Chaffetz, Utah
Islands Cynthia M. Lummis, Wyoming
Diana DeGette, Colorado Tom McClintock, California
Ron Kind, Wisconsin Bill Cassidy, Louisiana
Lois Capps, California
Jay Inslee, Washington
Joe Baca, California
Stephanie Herseth Sandlin, South
Dakota
John P. Sarbanes, Maryland
Carol Shea-Porter, New Hampshire
Niki Tsongas, Massachusetts
Frank Kratovil, Jr., Maryland
Pedro R. Pierluisi, Puerto Rico
Vacancy
James H. Zoia, Chief of Staff
Rick Healy, Chief Counsel
Todd Young, Republican Chief of Staff
Lisa Pittman, Republican Chief Counsel
------
SUBCOMMITTEE ON INSULAR AFFAIRS, OCEANS AND WILDLIFE
MADELEINE Z. BORDALLO, Guam, Chairwoman
HENRY E. BROWN, JR., South Carolina, Ranking Republican Member
Dale E. Kildee, Michigan Don Young, Alaska
Eni F.H. Faleomavaega, American Jeff Flake, Arizona
Samoa Doug Lamborn, Colorado
Frank Pallone, Jr., New Jersey Robert J. Wittman, Virginia
Gregorio Sablan, Northern Marianas John Fleming, Louisiana
Donna M. Christensen, Virgin Jason Chaffetz, Utah
Islands Bill Cassidy, Louisiana
Diana DeGette, Colorado Doc Hastings, Washington, ex
Ron Kind, Wisconsin officio
Lois Capps, California
Carol Shea-Porter, New Hampshire
Frank Kratovil, Jr., Maryland
Pedro R. Pierluisi, Puerto Rico
Nick J. Rahall, II, West Virginia,
ex officio
Vacancy
------
CONTENTS
----------
Page
Hearing held on Wednesday, March 3, 2010......................... 1
Statement of Members:
Bordallo, Hon. Madeleine Z., a Delegate in Congress from Guam 1
Prepared statement of.................................... 2
Cassidy, Hon. Bill, a Representative in Congress from the
State of Louisiana......................................... 3
Statement of Witnesses:
Buckson, Lt. Colonel Bruce, Deputy Director, Division of Law
Enforcement, Florida Fish and Wildlife Conservation
Commission................................................. 41
Prepared statement of.................................... 43
Response to questions submitted for the record........... 46
Letter from the Gulf States Marine Fisheries Commission.. 49
Frank, Hon. Barney, a Representative in Congress from the
State of Massachusetts..................................... 33
Jones, Hon. Walter B., a Representative in Congress from the
State of North Carolina.................................... 28
Prepared statement of.................................... 32
Lubchenco, Dr. Jane, Under Secretary for Oceans and
Atmosphere, and Administrator, National Oceanic and
Atmospheric Administration, U.S. Department of Commerce.... 16
Prepared statement of.................................... 18
Response to questions submitted for the record........... 21
Tierney, Hon. John F., a Representative in Congress from the
State of Massachusetts..................................... 4
Walsh, James P., Partner, Davis Wright Tremaine LLP.......... 50
Prepared statement of.................................... 54
Response to questions submitted for the record........... 59
Zinser, Hon. Todd J., Inspector General, U.S. Department of
Commerce................................................... 6
Prepared statement of.................................... 8
Response to questions submitted for the record........... 13
Additional materials supplied:
Flanigan, Patrick, Law Offices of Patrick Flanigan,
Swarthmore, Pennsylvania, Letter submitted for the record.. 63
McKeon, Sean, President, North Carolina Fisheries
Association, Statement submitted for the record............ 30
OVERSIGHT HEARING ON ``SETTING THE BAR FOR ACCOUNTABILITY: IMPROVING
NOAA FISHERIES LAW ENFORCEMENT PROGRAMS AND OPERATIONS.''
----------
Wednesday, March 3, 2010
U.S. House of Representatives
Subcommittee on Insular Affairs, Oceans and Wildlife
Committee on Natural Resources
Washington, D.C.
----------
The Subcommittee met, pursuant to call, at 2:37 p.m. in
Room 1324, Longworth House Office Building, Hon. Madeleine Z.
Bordallo [Chairwoman of the Subcommittee] presiding.
Present: Representatives Bordallo, Christensen, Shea-
Porter, Young, and Cassidy.
Ms. Bordallo. Good afternoon everyone. The Oversight
Hearing by the Subcommittee on Insular Affairs, Oceans and
Wildlife will come to order. Today we will hear testimony on
``Setting the Bar for Accountability: Improving NOAA Fisheries
Law Enforcement Programs and Operations.''
STATEMENT OF HON. MADELEINE Z. BORDALLO, A DELEGATE IN CONGRESS
FROM THE TERRITORY OF GUAM
Ms. Bordallo. Today's hearing is the direct result of a
serious report issued in January of this year by the Department
of Commerce, Office of Inspector General, regarding the
activities and policies of the National Oceanic and Atmospheric
Administration's fisheries law enforcement operations and
programs.
This is not the first report we have received from the IG
regarding these matters, but I sincerely hope that this
Administration will take the steps necessary to ensure that it
is the last. Regrettably, in many regions of the country, the
dysfunctional relationship between NOAA and the fishing
industry has reached a breaking point. If not remedied, this
will have long-lasting, detrimental effects--not only on our
fishing communities, but on the very resources the agency is
charged with managing and protecting.
In June of 2009, at the urging of several Members of
Congress, NOAA Administrator Lubchenco asked the IG to review
the operations of the NOAA Office of Law Enforcement within the
National Marine Fisheries Service and the Office of General
Counsel for Enforcement and Litigation. The review identified
systemic nationwide issues in a highly charged regulatory
climate contributing to the dysfunctional relationship between
NOAA and the fishing industry.
Such issues include a nine-to-one ratio of criminal to
civil investigators on staff, despite the fact that more than
90 percent of their caseload is non-criminal, regulatory
violations, a record of non-uniform prosecutions, an utterly
opaque penalty process, and chronic deficiencies in NOAA's
enforcement data system. The review made several
recommendations to improve this situation of mismanagement and
distrust, which I am sure Inspector General Zinser will
elaborate on in his testimony.
Two weeks later, NOAA issued a 10-point plan to address
these issues that is in the process of being implemented. I
commend Administrator Lubchenco for the steps she has taken
thus far to address a very serious situation that was largely
inherited, and I trust that she is committed to making it
right. Still, many questions remain, and it is not yet clear
that everyone involved shares her commitment.
Last week, we were informed by the IG's office that the
Director of the Office of Law Enforcement, Mr. Dale Jones,
authorized the destruction of documents at the NOAA law
enforcement headquarters in Silver Spring in November, while
his office was already under investigation by the IG. The
office-wide document disposal effort was not approved by the
IG's office or by Mr. Jones' superiors at NOAA.
While it is certainly possible that the timing of such a
housecleaning could be coincidental, and that no documents of
importance were destroyed, how will we ever know? And how is it
possible that Mr. Jones, an investigator himself, thought that
document shredding was appropriate at the same time that his
office was under investigation? On its face, it does not seem
possible, and it certainly does not give the appearance of an
office that is committed to a fair and open investigation or a
resolution of the ongoing distrust that exists within the
fishing industry.
The current reality is that while individual investigators
may be doing their best job possible, the management of the
fisheries law enforcement system is flawed, and there is much
more in the way of reform that will be needed. The question is
whether the current director of the Office of Law Enforcement
has the credibility to initiate those reforms.
So I look forward today to hearing from our witnesses, and
I hope that, with input from Congressional colleagues, this
hearing will be a step toward a better fisheries enforcement
system that serves both our fishing communities and our
fisheries. At this time, I recognize the gentleman from
Louisiana, Mr. Cassidy, the Ranking Republican Member of the
Subcommittee, for any statement that he may have.
[The prepared statement of Chairwoman Bordallo follows:]
Statement of The Honorable Madeleine Z. Bordallo, Chairwoman,
Subcommittee on Insular Affairs, Oceans and Wildlife
Today's hearing is the direct result of a very serious report from
the Department of Commerce Office of Inspector General (IG) regarding
the activities and policies of National Oceanic and Atmospheric
Administration's (NOAA) Fisheries law enforcement operations and
programs that was issued in January of this year.
This is not the first report we have received from the IG regarding
these matters, but I sincerely hope that this Administration will take
the steps necessary to ensure that it is the last. Regrettably, in many
regions of the country the dysfunctional relationship between NOAA and
the fishing industry has reached a breaking point. If not remedied,
this will have long-lasting, detrimental effects not only on our
fishing communities, but on the very resources the Agency is charged
with managing and protecting.
In June 2009, at the urging of several Members of Congress, NOAA
Administrator Lubchenco asked the IG to review the operations of the
NOAA Office of Law Enforcement within the National Marine Fisheries
Service and the Office of General Counsel for Enforcement and
Litigation. The Review identified ``systemic, nationwide'' issues and a
``highly charged regulatory climate'' contributing to the dysfunctional
relationship between NOAA and the fishing industry. Such issues include
a 9 to 1 ratio of criminal to civil investigators on staff, despite the
fact that more than 90 percent of their caseload is non-criminal,
regulatory violations; a record of non-uniform prosecutions; an utterly
opaque penalty assignment process; and chronic deficiencies in NOAA's
enforcement data system.
The Review made several recommendations to improve this situation
of mismanagement and distrust which I am sure Inspector General Zinser
will elaborate on in his testimony. Two weeks later, NOAA issued a ten
point plan to address these issues that is in the process of being
implemented. I commend Administrator Lubchenco for the steps she has
taken thus far to address a serious situation that was largely
inherited, and I trust that she is committed to making it right. Still,
many questions remain, and it is not yet clear that everyone involved
shares her commitment.
Last week, we were informed by the IG's office that the Director of
the Office of Law Enforcement, Dale Jones, authorized the destruction
of documents at the NOAA law enforcement headquarters in Silver Spring,
in November while his office was already under investigation by the IG.
The office-wide document disposal effort was not approved by the IG's
office or by Mr. Jones' superiors at NOAA.
While it's certainly possible that timing of such a housecleaning
could be coincidental, and that no documents of importance were
destroyed, how will we ever know? And how is it possible that Mr.
Jones, an investigator himself, thought that document shredding was
appropriate at the same time that his office was under investigation?
On its face, it does not seem possible, and it certainly does not give
the appearance of an office that is committed to a fair and open
investigation or a resolution of the ongoing distrust that exists
within the fishing industry.
The current reality is that while individual investigators may be
doing their best job possible, the management of the fisheries law
enforcement system is flawed and there is much more in the way of
reform that will be needed. The question is, whether the current
Director of the office of law enforcement has the credibility to
initiate those reforms.
I look forward to hearing from our witnesses today, and hope that
with input from my congressional colleagues, this hearing will be a
step toward a better fisheries enforcement system that serves both our
fishing communities and our fisheries.
______
STATEMENT OF HON. BILL CASSIDY, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF LOUISIANA
Mr. Cassidy. Thank you, Madame Chair. This hearing was
scheduled to examine disturbing findings about the NOAA
fisheries enforcement programs, as reported by the Department
of Commerce Inspector General. Clearly, fisheries laws need to
be enforced, and those that cheat affect the livelihoods of
those who play by the rules. But according to the IG's report,
in at least one region of the country, fisheries enforcement
has been considered arbitrary, and enforcement officers have
lost the respect of the fishing community.
In order for fisheries management to be effective, rules
and regulations need to be clear, and enforcement needs to be
consistent and fair. As the report notes, there needs to be a
level of trust among fishery managers, law enforcement, and the
regulated community--trust that the rules are being enforced
fairly and evenly. The report argues that in at least one
region the system has broken down. The IG's report has made a
few things clear, including the fact that fisheries rules and
regulations are complicated. In addition, the report shows that
there needs to be oversight at a higher level within NOAA, and
the report clearly states that NOAA needs to listen to
fishermen's concern.
Now speaking to my law enforcement folks back home, they
point at when they review the report, that it makes little
mention of the role that state law enforcement plays through
Cooperative Enforcement Agreements with NOAA. I am interested
to know how enforcement by state agencies was taken into
account by the IG who performed the investigation and prepared
the findings. I would also like to hear the panelists'
recommendations for the future enforcement role of the states.
I look forward to hearing the testimony today and hearing
what NOAA will do to address the serious issues raised by this
report. Thank you.
Ms. Bordallo. I thank the gentleman from Louisiana, Mr.
Cassidy, for his opening remarks. Now I would like to recognize
the first panel. It will be three of my colleagues. And right
now Mr. Tierney, from the Sixth District of Massachusetts, is
here with us. If you would begin, Mr. Tierney.
STATEMENT OF HON. JOHN TIERNEY, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF MASSACHUSETTS
Mr. Tierney. Thank you very much, Madame Chairwoman and
Ranking Member Cassidy and the members of the Committee. I
appreciate the opportunity to join you today, and I am very
happy to join Walter Jones and Barney Frank, my colleagues, to
talk about this important subject, important not just to those
like the three of us who represent coastal areas, but to
anybody who has an interest in areas where fishing takes place
and the fishing industry in the neighboring communities, but
also just the dietary factor of the importance that seafood
plays in all of our healthy eating habits.
We had a hearing yesterday, as you know, in our
Subcommittee on Oversight up in Gloucester, Massachusetts, in
my district. I want to thank Dr. Lubchenco for coming there. I
know that it wasn't her first choice of places to be yesterday,
but I do know that she took the trouble to come early, three
hours before the meeting took place, and had an opportunity to
meet with some of our fishing people and folks in the
community. I trust that she got a good earful of what troubles
people there, as well as at the hearing where our second panel,
in fact, were people from the fishing community as well.
There is a serious problem. Mr. Zinser is to be
congratulated for a good job on his Inspector General's report.
It is a good start. He has promised to look into some of the
particular cases as we go forward because there are many, many
individual instances where heavy-handed enforcement, arbitrary
decisions, capricious fines, and an attitude by the Federal
agents that is almost unbelievable when we as elected officials
listen to the way that people are being treated.
Part of that is contributed to by the fact that 98 percent
of the offenses and things that are being enforced by the
statute are civil in nature, yet 90 percent of the enforcement
staff are criminal. Mr. Jones' own background--he is in charge
of the Office of Law Enforcement--is, of course, a criminal
background. If you heard the instances of the fishing families
talking about the way that they are approached, the derogatory
language, the disdainful attitude toward them, the repetitive
fines--in our area of the Northeast, $5.5 million in a five-
year period. It is two and a half times greater than the next
largest region of the six regions, and five times greater or
more than the other four regions.
Clearly, something is wrong. The Inspector General points
out very evenly, I think, that one problem is that there is
really no centralization of this, no overriding policy or set
of principles and standards by which fines are assessed.
Consequently, it is almost left up to the individual agent to
go out there and decide what is going to happen. The database
isn't working efficiently. People can't look at past practices
and past offenses and determine how that is going to play out
on a penalty going forward.
There also seems to be very little consideration for
mitigating factors. We heard story after story of people having
a minor discrepancy, a paper error, if you might, or having a
piece of paper that has been properly documented but not with
them at the moment, but at their home; data that they relied on
from NOAA to establish their compliance, and NOAA not able to
give them that information, but then when they act in what they
thought was reliance on proper verbal information from NOAA,
only to find out that the information turned out to be
inaccurate, and they were penalized.
These are not small penalties. These are penalties enough
to cripple somebody and drive them out of business. And if I
think there is one overriding point, it is that this particular
law, the Magnuson-Stevens Act, is not about pitting
conservationists against the fishing industry and fishing
families. They are not mutually exclusive. Fishermen are
obviously conservationists by their own right. As my colleague
Barney Frank says very eloquently, no fisherman in a fishing
family for generations wants to be the last member of that
family to collect fish. They want it to continue on from family
to family, and you can see that from listening to what goes on
in these regions.
There has been a history in the Office of Law Enforcement
and in the assessment of fines as well of a lack of mission, as
the Inspector General says, a lack of oversight, a need for
NOAA to gain control over that process again. The wrenching
personal stories just lay out how there has been arbitrary
decisions made and how we need to get control of that situation
again. Regulation is not something that the fishing community
rejects. They expect regulation. They understand that it has a
purpose. They want it to be fair. They want it to be clear.
They want it to be transparent. They want it to be even-handed.
That has not at all been the case.
Given that all of this is laid out over a decade or more,
most of which Mr. Jones has been the head of the Office of Law
Enforcement, my question to him is why he didn't just resign.
And my question to Dr. Lubchenco, when she has had a chance to
digest all of this and look at the Inspector General's report--
and then the particular cases that he is going to look into
will be for her--don't we need a rearrangement of that entire
department, starting with Mr. Jones working on down?
Mr. Cassidy, you raised the point of the state cooperation
with agencies. That has not been the problem in our area. It
has not been the state enforcement people that have been the
problem. It has been the Federal enforcement people who come in
and treat these fishermen like common criminals. They came in,
in one instance, and raided a fishing auction without a warrant
in the middle of the night. If our police departments hadn't
been there to document it, I guess nobody would have been the
wiser on that.
But it has just been an abhorrent way of operating on this,
and it has to come to an end. I am very pleased that you are
taking an interest in this. I think together we can impress
upon Dr. Lubchenco, who as you noted, Madame Chairwoman, is
new. This is a wonderful opportunity for her to look at this
with fresh eyes. It is good that she asked for an independent
review by Mr. Zinser, and we are getting that. We hope to work
with her as well on rectifying first the statute, which needs
more flexibility.
We definitely need to have it not be so rigid so that
people can earn a living where the fish are there. It is not
going to be enough to give our fishermen loans or to retrain
them for another job when by NOAA's own data, it shows millions
and millions of dollars of fish out there and ready to be
fished. We have to find a way for people to be able to go out
and earn their living. That is what they want to do.
So with your help on that, we look forward to moving in the
right direction on this, and thank you again for your time and
your attention on this issue.
Ms. Bordallo. I thank the gentleman from Massachusetts, Mr.
Tierney. We are going to be awaiting the other two of our
colleagues. But before that, I would like to ask the gentlemen
standing in the back, you can take seats around the table here
if you wish to. It may be a long hearing.
So we would like to call on the second panel then. Thank
you, Representative Tierney. I would now like to recognize our
panel of witnesses, the second panel. Our witnesses include The
Honorable Todd J. Zinser, the Inspector General, the U.S.
Department of Commerce, and Dr. Jane Lubchenco, the Under
Secretary for Oceans and Atmosphere and Administrator, National
Oceanic and Atmospheric Administration. You can begin.
I just want to remind you that we do have a timing system
here of five minutes. The red light will go on. We would
appreciate your cooperation with the time limits. Be assured,
though, that your full written statement will be entered into
the record. Mr. Zinser, you can begin your testimony.
STATEMENT OF HON. TODD J. ZINSER, INSPECTOR GENERAL, U.S.
DEPARTMENT OF COMMERCE
Mr. Zinser. Thank you, Chairwoman Bordallo, Congressman
Cassidy, Congressman Young. We appreciate the invitation to
testify on our most recent report concerning 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 the policies and
practices of the Office for Law Enforcement within NOAA's
National Marine Fisheries Service and NOAA's Office of General
Counsel for Enforcement and Litigation.
The Under Secretary could have chosen to undertake this
review using an internal NOAA team, but instead 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 try
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 council members, and
current and former NOAA personnel. We reviewed enforcement
records and examined NOAA's management information systems. We
reviewed Department of Justice policy and guidelines and
analyzed comparable Federal regulatory enforcement agencies.
Our report details our three principle findings. First,
NOAA's 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 include significant discretion on the part of
individual enforcement attorneys with minimal guidance on how
to exercise that discretion. As such, we found it difficult to
argue with the view that the process is arbitrary and in need
of reform.
Third, NOAA needs to reassess its enforcement workforce
composition, which is presently 90 percent criminal
investigators, to determine if this criminal enforcement
oriented structure is the most effective for accomplishing its
primarily regulatory mission. Based on NOAA's own data for its
enforcement results, over the last two and a half years, about
98 percent of their work was non-criminal.
While we recognize NOAA's need to maintain criminal
investigative capacity, its caseload reflects that its current
staffing is disproportionate to agency function and operational
need, particularly compared with other agencies with similar
mission profiles and enforcement responsibilities such as EPA
and Interior's Fish and Wildlife Service. Those agencies
separate the regulatory and criminal enforcement functions with
inspectors who handle regulatory enforcement and criminal
investigators 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 to enforcement priorities and strategies with
regional management; two, instituting a robust ombudsman
program specifically for fisheries enforcement issues 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 special agents
is current and provides sufficient policy guidance on its
authorities and procedures for civil and criminal enforcement
activities; five, ensuring follow-through on the process
improvement initiatives outlined by the General Counsel for
Enforcement and Litigation in December; six, instituting a
mechanism for higher level review of civil penalty assessments;
and seven, develop and implement integrated case management
information systems for its enforcement mission.
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 for our recommendations and will assess
NOAA's progress by reviewing and reporting on the status of
these and other agency actions.
That concludes my summary, Madame Chairwoman. I would be
happy to answer any questions you or other Members may have.
[The prepared statement of Mr. Zinser follows:]
Statement of The Honorable Todd J. Zinser, Inspector General,
U.S. Department of Commerce
Chairwoman Bordallo, Ranking Member Brown, and Members of the
Subcommittee:
We appreciate the invitation to be here today to discuss our recent
report on the fisheries enforcement programs and operations of the
National Oceanic and Atmospheric Administration (NOAA). 1 My
testimony today will briefly summarize our report, and we request that
our entire report be made part of the record.
---------------------------------------------------------------------------
\1\ National Oceanic and Atmospheric Administration: Review of NOAA
Fisheries Enforcement Programs and Operations, Final Report No. OIG-
19887, January 21, 2010. OIG reports are available at our Web site:
www.oig.doc.gov.
---------------------------------------------------------------------------
We undertook our review at the request of Dr. Jane Lubchenco, the
Under Secretary of Commerce for Oceans and Atmosphere, who also serves
as the Administrator of NOAA. She had been contacted by the
Massachusetts congressional delegation and state elected officials, as
well as by both U.S. Senators and multiple Representatives from North
Carolina, recounting complaints of excessive penalties and retaliatory
actions by NOAA fisheries enforcement officials. Our review, then,
evaluated the policies and practices of the Office for Law Enforcement
(OLE) within NOAA's National Marine Fisheries Service (NMFS) and NOAA's
Office of General Counsel for Enforcement and Litigation (GCEL).
We examined their overall conduct of enforcement actions; how they
prioritize actions and set penalty assessments; and their use of
resources, including funds obtained through imposed penalties.
We faced two conditions that limited our ability to fully meet our
objectives. First, inadequate management information systems were a
significant detriment. For instance, while NOAA's data shows regional
disparity in aggregate civil penalty assessments, fostering a
perception that such assessments in the Northeast have been arbitrary,
NOAA's lack of effective case management systems and useful data made
more in-depth analysis impossible. As we further explain below, if NOAA
is to succeed in bringing a greater level of management attention to
its enforcement programs, it will need substantially improved data
systems.
Second, we were constrained in our ability to meet our objective to
examine the use and management of what NOAA calls the asset forfeiture
fund. We found that despite a balance of $8.4 million as of December
31, 2009, OLE officials were not aware of the fund's having ever been
audited, and internal controls over the fund had not been tested. As a
result, we have commissioned a forensic review of the fund as a follow-
up action, and that review is underway.
Our review included speaking with over 225 individuals in various
parts of the country, including the Northeast--fishermen, boat
captains, industry association representatives, conservation officials,
Fishery Management Council members, and current and former NOAA
personnel. We also established a dedicated e-mail address for
interested parties to use to provide potentially relevant information.
Further, we reviewed numerous OLE and GCEL enforcement records and
related documents, and examined OLE's and GCEL's case management
information systems. Finally, we reviewed Department of Justice policy
and guidelines regarding enforcement techniques, and analyzed
comparable federal regulatory enforcement agencies, including the
Environmental Protection Agency (EPA) and the Department of the
Interior's Fish and Wildlife Service.
SUMMARY OF RESULTS
Our report details our three principal findings:
1. 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 based on integration and coordination with headquarters
fisheries management and science center elements; implementing
effective management information systems; and utilizing data to inform
its management decisions and enforcement activities.
2. 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.
3. NOAA needs to reassess its OLE workforce composition (presently
90 percent criminal investigators), to determine if this criminal
enforcement-oriented structure is the most effective for accomplishing
its primarily regulatory mission.
An important backdrop framing the issues we examined and the
results we further discuss below, is recognizing that regulation of the
fishing industry is highly complex and dynamic--presenting NOAA with a
particularly difficult mission. This backdrop underscores a continual
need for NOAA to understand industry perspectives and changing
conditions within its fisheries and the industry; establish and follow
enforcement priorities that are well-grounded and involve integration
with the agency's science elements; ensure well-managed programs and
operations carried out by a workforce structured solely according to
operational needs; and maintain effective communication with the
industry. Essential to NOAA's overall program effectiveness is ample
involvement and oversight by NOAA leadership, to include ensuring that
there are adequate checks and balances for enforcement operations.
Our report presents specific recommendations for NOAA to strengthen
its enforcement programs and operations, in the interest of promoting
greater transparency, consistency, and oversight. These include:
NOAA leadership's regularly addressing and providing
input to enforcement priorities and strategies with regional
management, to include integration and coordination with headquarters
fisheries management and science center elements.
Instituting a robust ombudsman program to provide an
effective interface with the commercial fishing industry.
Determining whether NOAA should continue to approach
enforcement from a criminal-investigative standpoint, and determining
whether the agency has an appropriate balance and alignment of
uniformed enforcement officers and criminal investigators, based on
mission need.
Ensuring that GCEL implements and follows an operating
procedures manual that includes processes, methods, and justification
for determining civil penalty assessments and fine settlement amounts;
and that OLE's enforcement operations manual is current and provides
sufficient policy guidance on its authorities and procedures for civil
and criminal enforcement activities.
Ensuring follow-through on GCEL process improvement
initiatives outlined in its memorandum of December 1, 2009.
Instituting a mechanism for higher-level review of civil
penalty assessment determinations by GCEL attorneys in advance (e.g.,
by a panel established within NOAA headquarters).
Ensuring that GCEL and OLE develop, implement, and
effectively utilize reliable, integrated case management information
systems.
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
reporting on the status of these and other agency actions.
FINDINGS
NOAA is entrusted with broad statutory enforcement powers to
promote compliance and deter violations within the commercial fishing
industry. This calls for the highest degree of oversight by NOAA
leadership to ensure fairness and consistency in enforcement activities
and sanctions, promote program integrity and accountability, and avoid
even the appearance of abuse of authority. The agency's enforcement
operations have not garnered a great deal of attention from senior
management within the large, science-based organization. Yet these
offices have great potential to affect the fishing industry, the
livelihood of individual fishermen, and the public's confidence in NOAA
and the Department of Commerce. Our three primary findings are as
follows:
1. NOAA senior leadership and headquarters elements need to
exercise substantially greater management and oversight of the agency's
regional enforcement operations.
Given the complexities of NOAA's mission and organization, the
industry, and the current enforcement climate, its establishment of
enforcement priorities is essential. This should involve integration
and coordination with its headquarters fisheries management and science
center elements, including the Assistant Administrator for NMFS, to
whom OLE reports. Such linkage, with corresponding use of both science
and enforcement-related data, would better enable NOAA to establish
priorities and target its enforcement operations to those areas
warranting such focused attention.
We concluded that a lack of management attention, direction, and
oversight led to regional enforcement elements operating autonomously.
As shown in the table below, this contributed to aggregate fine
assessments in the Northeast Region that are inconsistent with those in
the other regions. Moreover, the substantial difference between
initially assessed and settled fines in the Northeast fosters the
appearance that fine assessments in that region are arbitrary.
[GRAPHIC] [TIFF OMITTED] T5220.001
.epsThe table shows that the Northeast Region's initial fine
assessments totaled nearly $5.5 million--an amount two-and-a-half times
greater than the second highest region, and about five times or more
greater than the other regions. Of further significance, the data show
the Northeast as the region with the greatest percentage reduction from
assessed to settled fine amounts (approximately $5.5 million assessed
to approximately $1.6 million settled--a nearly 70-percent reduction).
GCEL's explanation for this inconsistency is that initial
assessment amounts involve complex factors, which are considered on a
case-by-case basis, using NOAA's Civil Administrative Penalty Schedule
and accompanying internal guidelines. However, no formal process exists
for sufficiently documenting decisions regarding fine assessments and
settlement amounts, making GCEL's explanations for regional differences
unauditable and thus unverifiable. Further, information contained in
the table required substantial data manipulation, time, and effort for
OLE to produce. NOAA also collects funds from asset forfeitures (e.g.,
fish seizures); such information is not included in the table.
Inclusion of those figures would require a similarly labor-intensive
manual effort.
We also found that NOAA leadership has had minimal involvement in
setting enforcement priorities, linking enforcement to its fishery
management goals, or evaluating enforcement program effectiveness.
Similarly, regionally-established enforcement priorities, even if
documented, have not typically been disseminated to headquarters.
2. 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.
GCEL's process 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. One reform that NOAA should consider is instituting
a process that includes higher-level review of civil penalty assessment
determinations by GCEL attorneys in advance. NOAA should also revise
applicable procedural regulations and penalty schedules in order to
provide greater consistency and clarity, and reduce confusion among
affected industry parties.
Additionally, NOAA's data for fines are inherently unreliable
because of weaknesses in GCEL's and OLE's current case management
information systems--in particular, data that are missing, entered into
the systems inconsistently, or vague. For example, based on our
comparison of ``closed'' case data between OLE and GCEL data systems,
out of 2,726 unique case numbers in OLE's system, only about 5 percent
match GCEL's system for cases closed from July 2007 through June 2009.
To its credit, in response to the results of our review, GCEL has
recently initiated several steps to promote transparency, help ensure
fairness, and open lines of communication with the fishing industry.
They include initiatives to (1) revise procedural regulations and
penalty schedules; (2) develop an internal operating procedures manual;
and (3) implement a new case-tracking database, linking to OLE's case
management system. 2
---------------------------------------------------------------------------
\2\ These efforts are detailed in a December 1, 2009, memorandum
from the Assistant General Counsel for GCEL to NOAA's Deputy General
Counsel.
---------------------------------------------------------------------------
3. NOAA must reassess its OLE workforce composition, which is now
90 percent criminal investigators, to determine if such an emphasis on
criminal enforcement is the most effective for accomplishing a
primarily regulatory mission.
Based on OLE's own data, its caseload from January 1, 2007 through
June 30, 2009, was about 98 percent noncriminal. Ten years ago, NOAA
increased its already predominantly criminal investigator workforce
(then 75 percent) to today's 90 percent. There are indications in the
record that this workforce composition was driven by considerations of
the better pay and benefits that apply to federal criminal
investigators, rather than by strict mission requirements.
OLE's fundamental mission is to assist in the protection of
fisheries by enforcing resource protection and fisheries management
laws. OLE caseload data for January 1, 2007 through June 30, 2009,
illustrate that its mission has principally involved enforcement of the
Magnuson-Stevens Fishery Conservation and Management Act 3
(65 percent of cases). The criminal provisions of the Act are narrowly-
focused and nearly all are misdemeanors. Yet because the office is
staffed largely with criminal investigators, OLE's orientation is to
conduct criminal investigations. This despite the fact that the only
felony provisions involve the use of a dangerous weapon during the
commission of an act prohibited by Magnuson-Stevens and the assault of
observers and officers authorized to enforce the Act. 4
According to OLE, violations of the Act typically do not result in
criminal charges; most violations (such as exceeding catch limits)
result in administrative penalties alone.
---------------------------------------------------------------------------
\3\ The Act is codified, as amended, at 16 U.S.C. Sec. 1801 et seq.
For more information on the Act, see our January 21, 2010, report.
\4\ See 16 U.S.C. Sec. 1859.
---------------------------------------------------------------------------
While we recognize OLE's need to maintain a criminal investigative
capacity, its caseload reflects that its current staffing is
disproportionate to agency function and operational need, particularly
compared with other agencies with similar mission profiles and
enforcement responsibilities. For instance, agencies such as EPA and
Interior's Fish and Wildlife Service separate their regulatory and
criminal enforcement functions, with inspectors who handle regulatory
enforcement and criminal investigators who handle criminal
investigations.
NOAA ACTIONS IN RESPONSE TO OIG FINDINGS AND
RECOMMENDATIONS
In a memorandum dated February 3, 2010, Under Secretary Lubchenco
announced a two-pronged approach to addressing our findings and
implementing our recommendations. This approach, which the Under
Secretary characterized as initial steps, entails a series of immediate
actions and other actions to be completed by March 21, 2010, summarized
as follows:
A. Immediate actions:
1. Subject to compliance with applicable labor relations
requirements, NOAA General Counsel shall immediately institute
higher level reviews of proposed charging decisions, including
proposed penalties and permit sanctions, and proposed
settlements to ensure consistency and predictability.
2. An immediate freeze on the hiring of criminal investigators
until NMFS completes an internal work force analysis to address
the appropriate mix of enforcement personnel and it is approved
by the Under Secretary.
3. An immediate shift in oversight of the NMFS Civil Monetary
Penalties Fund (also known as the Asset Forfeiture Fund) from
NMFS to NOAA's Comptroller.
4. NMFS, in consultation with NOAA's Office of Communications,
will direct resources to improve communications on enforcement
issues, particularly in the Northeast.
5. NOAA's General Counsel, NMFS, and NOAA's Director of
External Affairs will develop specific objectives and detailed
plans for a summit on law enforcement practices to be held no
later than June 30, 2010.
B. Actions to be completed by March 21, 2010:
1. NMFS' Office of Law Enforcement and NOAA'S General Counsel,
in cooperation with NOAA's Chief Information Officer, will
develop a strategy and schedule to improve management
information systems, including recommendations on actions to
take advantage of the internet to increase transparency.
2. The Assistant Administrator for Fisheries, with input from
NOAA's leadership, will develop a plan and schedule to
implement standardized procedures for setting enforcement
priorities.
3. NOAA's General Counsel for Enforcement and Litigation will
develop a plan and schedule to strengthen its operating
procedures, prosecution of charged cases, and settlement
actions.
4. The Assistant Administrator for Fisheries, in collaboration
with the NOAA Communications Office and General Counsel for
Enforcement and Litigation, will develop an outreach strategy
to improve engagement with the local fisheries community and
the public.
5. The Assistant Administrator for Fisheries, in consultation
with the Director of the Workforce Management Office, will
formulate a plan to review the NMFS Office of Law Enforcement's
staffing and procedures. This plan will explicitly address both
civil and criminal requirements, with specific focus on
ensuring that criminal procedures are not applied to civil
offenses. Development of the plan should include appropriate
independent review.
OFFICE OF INSPECTOR GENERAL FOLLOW-UP
We have identified three areas for additional review stemming from
our results:
1. NOAA's Retention of Civil Penalties and its Asset
Forfeiture Fund. Fishermen and other industry sources expressed
concern to us that NOAA's fines are excessive, constituting a
form of bounty, because the agency is able to retain the
proceeds from its enforcement cases. This is not an uncommon
charge against law enforcement agencies granted authority to
seize assets. The most effective way to counter such charges is
for the agency to demonstrate in a transparent way how the
proceeds of its enforcement actions are used. NOAA has the
statutory authority to retain proceeds from the civil penalties
it imposes and collects, and pursuant to asset forfeitures
(such as the sale of seized fish, vessels, etc.) for Magnuson-
Stevens Act violations to pay for expenses directly related to
investigations and civil or criminal enforcement proceedings.
5
---------------------------------------------------------------------------
\5\ 16 U.S.C. Sec. 1861(e)(1)(C).
We determined that NOAA has an asset forfeiture fund
comprising such proceeds, the balance of which the agency
reported as $8.4 million as of December 31, 2009. However, the
account under which these proceeds are maintained has weak
internal controls, and we could not readily determine how NOAA
has utilized these funds. This is because while the fund's
balance is included in the Department's overall financial
statements, internal controls over the fund are not tested as
part of the Department's annual financial statement audit, due
to the relatively small size of the fund; neither are they
tested as part of the annual Department-wide financial audit.
As mentioned, we are commissioning a forensic review of the
fund, and will issue our findings upon its completion.
2. NOAA's Progress in Addressing OIG's Results. We will review
and report on NOAA's progress in carrying out its actions in
response to our findings and recommendations. Our follow-up
efforts will include reviewing the above-referenced actions
announced by the Under Secretary, GCEL's initiatives, and any
additional measures NOAA takes to implement our
recommendations.
3. Individual Complaints. In order to carry out this review in
a timely manner, it was necessary to closely define our scope
and focus on the management of the programs and operations
related to fisheries enforcement. At the same time,
expectations rose that we would investigate individual cases,
brought to our attention or reported in the media, in which
fishermen believe they were treated unfairly or were subject to
overzealous enforcement. We could not accomplish both at the
same time. Therefore, our initial focus was on the management
issues we identified.
We received specific complaints from dozens of fishermen
during our review, including alleged abuses of authority by
NOAA enforcement personnel, disparate treatment, and excessive
fines. We are in the process of examining these complaints and
corresponding enforcement case files to determine whether any
additional action is necessary or recommended, either by our
office or NOAA. Based on our review to date, allegations of
abusive treatment are not widespread; however, I feel that it
is important that we do all we can to get to the bottom of
these concerns and the facts surrounding these cases.
Mr. Chairman, this concludes my prepared statement. I would be
pleased to respond to any questions that you or other Members of the
Subcommittee may have.
______
Response to questions submitted for the record by Todd J. Zinser,
Inspector General, U.S. Department of Commerce
Questions from Chairwoman Madeleine Z. Bordallo (D-GU)
1. What are the regional impacts from the lack of oversight by NOAA's
senior leadership and headquarters?
As cited in our report, the impact from lack of oversight by NOAA
leadership over regional enforcement elements was most apparent in the
Northeast Region because of a specific set of conditions and
circumstances (economic, cultural, science) in that region. However,
the systemic leadership issues highlighted in the report have the
potential to spread to other regions as conditions in those regions
change. The impact from lack of oversight will vary from region to
region based upon a number of factors including the science,
priorities, and enforcement management strategies that are unique to
each regional office.
The science includes data and information from Sustainable
Fisheries, Habitat and Protected Resources which in turn can impact the
priorities and initiatives of each region depending upon seasonal
issues, the status and health of stocks, economic impact(s), input and
recommendations from the FMCs and any other necessary or immediate
responses based upon current conditions and circumstances. Fisheries
enforcement management officials then consider these factors and,
together with their leadership, develop and implement strategies,
initiatives, and operational procedures and guidance for each region
and nationwide.
2. What kinds of expenditures were made using NOAA's Asset Forfeiture
Fund?
Our Forensic Review of the Asset Forfeiture Fund by KPMG is ongoing
and we should be able to report out fully on the findings of that
review in the near future. At this time we are aware of some general
categories of expenditures made by NOAA using the Asset Forfeiture
Fund. Those categories include operating expenses for the Office of
General Counsel for Litigation and Enforcement, contracts to support
enforcement databases, travel for agents and attorneys, and equipment
purchases for OLE such as boats and cars.
3. What parts of the recommendation ``to strengthen the role of the
law enforcement committees and advisory panels'' from the OIG
March 2003 report were not implemented?
OIG recommended in 2003 that NOAA strengthen the role of the
Fishery Management Councils' (FMC) law enforcement committees and
advisory panels. At that time, NMFS developed and began to implement
guidance to more clearly define the role of these bodies. In several of
the regions, these groups began to meet regularly and gave more focus
to enforcement issues, but these efforts were not sustained. OIG has
not performed a formal review of the status of law enforcement
committees, but through other NMFS work we have learned that in some
regions the entities morphed into Law Enforcement/Vessel Monitoring
System/Safety committees and panels. In others, the groups currently
meet less regularly. Also, while OLE representatives do attend the FMC
meetings and provide an enforcement report, in general, OLE's
involvement on the committees still needs strengthening.
4. What additional steps does NOAA need to take to make its case
management system effective?
OLE and GCEL both need to continue upgrading their systems. They
need to ensure that these systems are effectively and efficiently
linked to the other to help ensure timely and accurate case updates and
information sharing between OLE and GCEL. In fact, along these lines it
might be beneficial for NOAA to explore a single system solution.
Additionally, management needs to take an active role in
utilization and design of the system reporting functions to help ensure
the information entered can be organized and reported in a useable and
informative manner. Appropriate data fields need to be incorporated
into both systems that will allow for tracking and reporting of items
such as permits, permit violations, seizures, and repeat offenders,
which the system currently does not capture.
NOAA should also ensure that management uses the information to
assist with decision-making and oversight. Finally, NOAA must establish
procedures and training programs for using the system to ensure case
information is updated in a consistent, timely, and accurate manner.
5. What have you learned so far in follow-up investigations on the
individual cases of heavy-handed enforcement on fishermen?
Our investigation regarding these matters is ongoing. Therefore, we
are unable to report any findings.
Questions from Republican Members
1. This report primarily focused on the Northeast region although you
did hear from fishermen in other regions. Do you plan to do any
further investigations into other regions?
We believe the results of our review and the recommendations made
in our report address the problems we identified within NOAA
enforcement nationwide. As such, we do not plan further investigations
in other regions.
2. Are most of the problems of transparency and seemingly arbitrary
fines you found within the NOAA law enforcement offices
systemic or are they primarily regional in nature?
We believe most of the problems identified concerning a lack of
transparency and appearance of arbitrary fines and penalties within
NOAA's civil assessment process are systemic. NOAA's General Counsel
for Enforcement Litigation lacks an internal operations manual. As a
result, GCEL's proposed fines are determined by NOAA's Civil
Administrative Penalty Schedule (which ranges from a written warning to
$120,000 penalty for single offences) and accompanying informal
guidelines. Penalty assessments are left solely to individual regional
enforcement attorneys, who have broad discretion. Based on the
available data concerning initial penalty assessments, we found that
even though the assessments fell within the penalty schedule, the
initial assessments by GCEL attorneys in the Northeast were higher
relative to other regions.
3. The Alaska region suffered from a similar problem with the Coast
Guard fisheries enforcement years ago, especially when
personnel were transferred from areas where drug interdiction
was the primary responsibility. Regional Fishery Training
Centers were created and fishermen became active participants
in the training for Coast Guard personnel sent to Alaska. This
created a much better relationship between the regulated
community and law enforcement. Would some type of cooperative
training center be beneficial to NOAA law enforcement
personnel? Should we require that all NOAA law enforcement
personnel go through the Coast Guard training?
Yes, we do believe that some type of cooperative arrangement for
training and/or educational purposes would be beneficial to both NOAA
law enforcement and the fishing industry and that it would have a
positive impact on relationships between the two entities.
OLE considers the Coast Guard a strong partner in enforcing marine
resource laws and performing fishery management ashore. While
cooperative training among federal law enforcement personnel with
complementary missions is often beneficial, we are not specifically
familiar with the Coast Guard's cooperative training center and cannot
opine as to whether all NOAA law enforcement personnel should be
required to go through Coast Guard training.
4. Do you believe the items suggested by NOAA will be sufficient to
meet your concerns and the recommendations you made in the
report?
NOAA's proposed action items appear to meet the intent of our
recommendations and we believe they are sufficient to meet our
concerns. However, follow-through on those proposed actions is key and
my office is committed to tracking and ensuring proper follow-through.
5. Congressman Jones notes that the number of law enforcement
personnel has risen while the number of fishermen and the level
of quotas have declined. Did the IG look at whether the
staffing levels of the NOAA law enforcement program were
appropriate to their mission? Did the IG look at whether
staffing levels in the Northeast region were appropriate to the
mission? Did the IG examine the role of state law enforcement
through Joint Enforcement Agreements and how those agreements
might affect staffing needs for NOAA law enforcement
activities?
While we did not assess whether OLE's staffing levels were
appropriate, we did find that its current staffing ``make-up'' is
disproportionate to agency function and operational need, particularly
compared with other agencies with similar mission profiles and
enforcement responsibilities. As of August 31, 2009, OLE's enforcement
staff consisted of 149 criminal investigators and 15 uniformed
enforcement officers--12 of whom are located in Alaska, with none
located in the entire Northeast region. According to OLE data for the
past three years (2007-2009), approximately 98 percent of its
enforcement caseload has been regulatory--with only about 2 percent
criminal cases. As a result, we recommended that NOAA determine whether
the agency has an appropriate balance and alignment of uniformed
enforcement officers and criminal investigators, based on mission need.
We did not examine how coastal state marine enforcement agencies
through joint enforcement agreements (JEAs) might affect staffing needs
for NOAA law enforcement activities. In 2008, we assessed NOAA's
efforts to target living marine resource violations through the JEA
program. OLE relies on the U.S. Coast Guard and coastal state marine
enforcement agencies for help enforcing federal fisheries regulations
within the 200 miles of U.S. coastline known as the U.S. Exclusive
Economic Zone. At that time, we found the JEA program was hampered by
administrative and operational deficiencies that prevent NOAA from
maximizing the benefits of these partnerships. We determined that (1)
JEA activities needed to be more closely monitored from headquarters
and at the divisional level to verify state reported JEA data, (2) the
use of summary settlements was limited (only 3 of the 27 JEA partners
had this authority) and loosely managed, and (3) GCEL lacked written
policies and procedures for making and managing delegations of summary
settlement authority.
6. Most of your concerns seem to be in enforcement actions against the
commercial fishing sector. Have you received similar complaints
or did you see similar concerns in enforcement activities of
the recreational or charter fishing sectors?
Most of the complaints related to enforcement that we received were
from the commercial fishing sector. We received some enforcement-
related complaints from the recreational and charter fishing sectors
but very few. We heard--both in the course of this review and in
previous work--many complaints about NOAA's overly-confusing and
complicated fisheries management regime and its ever-changing,
burdensome regulations from the commercial, recreational, and charter
fishing sectors.
7. Congress required NOAA Science and Statistical Committees (SSC) to
meet concurrent with regional fishery management council meetings so
that fishermen could participate. I understand that in at least one
region, this is still not being done. In addition, I understand that
one particular SSC still refuses to hear testimony from any scientist
who has ever accepted money from the fishing industry yet has a full-
time employee of an environmental group on the SSC. Is the lack of
integration of the fishing industry into the science aspects of the
fishery management process something Congress should ask the IG to also
look into?
The quality of the fishing industry's integration into the science
aspects of NOAA's fishery management process is an important issue. In
February 2009, the IG sent a memorandum to NOAA after an OIG review of
industry allegations regarding NMFS' Northeast Fisheries Science
Center. This review focused on northeast groundfish (multispecies)
issues and was initiated at the request of Senators Snowe, Collins,
Kennedy and Kerry. We recommended that NMFS should enhance the
participation of the northeast groundfish industry in the fisheries
management process by (1) incorporating data from scientifically
rigorous groundfish industry-based surveys (as it already does with
industry-based surveys in the sea scallop and monkfish industries); (2)
doing more targeted cooperative research with the groundfish industry;
(3) improving communication and education efforts with the groundfish
industry, including making the Science Center website more user-
friendly and easier to navigate; and (4) highlighting creative efforts
of groundfish industry members working towards sustainable, profitable
local fisheries. NOAA has not yet provided the OIG with information
that demonstrates that it is working to implement this recommendation.
8. You note that the law enforcement data management systems at NOAA
were inadequate. Would it surprise you to know that the NOAA
General Counsel did not even have a system for tracking
lawsuits against their own agency until this Committee asked
them to do so?
We are not surprised, given the data system inadequacies we
identified, that such issues exist.
______
Ms. Bordallo. I thank you, Mr. Zinser, for your testimony,
and for your ongoing efforts in this issue. Dr. Lubchenco, you
can now begin.
STATEMENT OF DR. JANE LUBCHENCO, UNDER SECRETARY OF OCEANS AND
ATMOSPHERE AND ADMINISTRATOR, NATIONAL OCEANIC AND ATMOSPHERIC
ADMINISTRATION, U.S. DEPARTMENT OF COMMERCE
Dr. Lubchenco. Thank you, Chairwoman Bordallo, Ranking
Member Cassidy, members of the Committee. I greatly appreciate
the opportunity to testify before you today on the Inspector
General's report.
Congress has acknowledged the value of our marine and
coastal environment through several laws, including the
Magnuson-Stevens Fishery Conservation and Management Act. Under
this law, NOAA has regulatory obligations to ensure the
sustainability of marine resources and their habitat. 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, however, commercial and recreational
fishermen must know the rules, and believe that if they follow
the rules, others will too. But these rules must be
consistently and fairly enforced. NOAA is committed to
improving its enforcement program to assure that it is both
effective and fair. A lot of hardworking investigators, agents,
and lawyers work every day to protect our nation's ocean and
fishery resources. But there must be a level playing field, and
fishermen have to have confidence in the system.
As Congressman Tierney mentioned, I spent a few hours
yesterday morning meeting with fishermen in Gloucester. Doing
so is part of my commitment to have an open, productive
dialogue with fishermen, to understand their perspectives and
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 I heard among other
things their frustration with NOAA's law enforcement.
A couple of months later, I heard concerns from Members of
Congress about NOAA's enforcement program. In response, I
requested the Department of Commerce 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 opportunities within our
coastal and fishing communities.
The IG report released on January 21 identifies a number of
very serious issues with NOAA's enforcement program, and it
recommends several steps we should take to address the
deficiencies. I take this report very seriously, and I am
committed to responding in a comprehensive, thoughtful, and
timely manner.
In response to the IG report, I have instructed the new
NOAA General Counsel, Lois Schiffer, and the new National
Marine Fisheries Service Assistant Administrator, Eric Schwaab,
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
recommendations in the allotted 60-day time frame, 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
then talk about some of the longer-term actions we are
planning.
First, I have instituted a freeze on the hiring of criminal
investigators until an internal workforce analysis is done to
address the appropriate mix of criminal investigators and
regulatory inspectors in the enforcement office. This action
will better position the agency to address the report's
observations that the Office of Law Enforcement may not have
the appropriate balance in its workforce.
Second, I have shifted oversight of the asset forfeiture
fund from NOAA's National Marine Fisheries Service to NOAA's
Comptroller. This intermediate step will begin to address the
IG's criticism that internal controls over this fund are
lacking. We are actively working with the IG to conduct a
forensic audit on this fund and will further review this issue
once we have the results from 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 decisions, resulting in the appearance of arbitrary
decisionmaking.
Other actions I would like to highlight fall into the
category of improved communication and enhanced oversight,
which are major themes of the IG report. We are planning a
number of actions to improve communication and increase
transparency with the regulated community. A top-level
management team is developing detailed plans for a summit on
law enforcement practices to be held no later than June 30 of
this year. The 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 actions, including approaches to address the
regulated community's concern of complex, conflicting, and
excessive administrative burdens.
We are also well on our way to implementing much needed
improvements to our management information systems. This is
intended to address the current system inefficiencies and data
integrity issues. The improvements will enable NOAA to more
effectively use information to guide its decisionmaking and
increase transparency in our enforcement actions.
The IG's report identified a lack of oversight in several
aspects of our enforcement programs. To address this, we are
working on several initiatives, including developing
standardized procedures for setting enforcement priorities.
This will ensure some nationwide consistency while still
addressing the regional needs. We are also strengthening the
operating procedures for our enforcement activities. This is
intended to promote greater transparency and prosecution and
settlement actions.
So these steps are intended to begin to respond to the
issues identified by the IG. NOAA will build upon these steps
to respond to all of the IG's recommendations and to improve
our enforcement program. Our marine and coastal 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 urgency for
change and commit to serious, measurable reforms to address the
IG's recommendations and enhance our work with the fishing
community. Thank you.
[The prepared statement of Dr. Lubchenco follows:]
Statement of Dr. Jane Lubchenco, Under Secretary of Commerce for Oceans
and Atmosphere, National Oceanic and Atmospheric Administration, U.S.
Department of Commerce
My name is Dr. Jane Lubchenco and I am the Under Secretary of
Commerce for Oceans and Atmosphere and the Administrator of the
National Oceanic and Atmospheric Administration (NOAA). Thank you for
the opportunity to testify before you today on the recent Inspector
General report ``Review of NOAA Fisheries Enforcement Programs and
Operations, Final Report No. OIG 19887''.
BACKGROUND NOAA LAW ENFORCEMENT
NOAA has an important obligation to protect marine and coastal
resources under a number of statutes. NOAA and fishermen share a common
goal, captured in law, to maximize the benefits to the nation derived
from our fish stocks. Proper regulation and enforcement are vital to
this effort that also provides stability to coastal economies and to
the marine environment on which so much depends. Commercial and
recreational fishermen must believe that if they follow the rules,
others will too. To be effective, the rules must be consistently--and
fairly--enforced.
Congress has acknowledged the value of our marine and coastal
environment through several statutes including the Magnuson-Stevens
Fishery Conservation and Management Act, Endangered Species Act (ESA),
Marine Mammal Protection Act, National Marine Sanctuary Act, and
others. Under these statutes, NOAA has regulatory obligations to ensure
the sustainability of marine resources and their habitat. A critical
component of any regulatory system is enforcement.
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. NOAA's trust resources are a public resource that should
be protected through proper regulation and enforcement for the benefit
of Americans, coastal economies and the ocean environment. These
responsibilities range from enforcing our fisheries and national marine
sanctuaries regulations to addressing violations of the ESA and other
statutes. Enforcement actions, including investigations and patrols,
use of technology such as vessel monitoring systems (VMS), and
partnerships with other federal agencies and states, are needed to
ensure effective management and deter cheating.
The NOAA Fisheries Service Office of Law Enforcement has 164 agents
for its broad and complex mission. NOAA agents enforce numerous
regulations, as well as over 35 different statutes, to assure the
conservation and protection of marine resources. To ensure compliance
with these laws and regulations, NOAA has employed a ``four pillared
approach.'' These four pillars include:
1) Traditional law enforcement methods involving investigations
and patrols;
2) Reliance upon key partnerships, particularly our coastal state
and territory conservation enforcement agencies, the United States
Coast Guard, and other local and internationally based enforcement
organizations;
3) Advanced technologies, such as the satellite-based VMS program;
and
4) Outreach and education to promote voluntary compliance.
The United States Coast Guard is responsible for the at-sea
boarding and inspection of fishing vessels and fisheries enforcement as
a primary component of their mission. The Coast Guard works
collaboratively with NOAA's Law Enforcement Programs. The State
Cooperative Enforcement program is also integral to NOAA enforcement
capabilities. Nearly every U.S. coastal state and territory (with the
exception of one--North Carolina) participates in this program, thereby
providing tens of thousands of hours of dockside and at-sea fisheries
patrols and inspections.
NOAA General Counsel for Enforcement and Litigation attorneys are
charged with the responsibility of bringing enforcement actions for
violations of the living marine resource statutes which NOAA
administers. NOAA's law enforcement agents, officers, and attorneys
throughout the country are critical to ensuring mission success. As we
incorporate new and innovative management measures to rebuild and
sustain our Nation's fisheries, we will rely on support and cooperation
from all of our partners. NOAA is committed to accomplishing its
enforcement and management goals through collaborative, transparent and
fair means.
INSPECTOR GENERAL REPORT
Following concerns expressed by Members of Congress and the fishing
community, I requested the Department of Commerce Inspector General
(IG) conduct a review of NOAA's Office of Law Enforcement and NOAA's
General Counsel for Enforcement and Litigation in June 2009. 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 to preserve good jobs and economic opportunity within our
coastal and fishing communities.
The Inspector General's report, released on January 21, 2010,
identifies a number of very serious issues with NOAA's enforcement
program, and recommends several steps we should take to address
deficiencies. I take this report very seriously, and I am committed to
responding in a comprehensive, thoughtful, and timely manner. I have
instructed the NOAA General Counsel and the National Marine Fisheries
Service Assistant Administrator to address the Inspector General'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 recommendations in the 60-day
timeframe, we have already taken a number of actions in response to the
IG report.
Let me briefly outline some of the immediate actions we have taken,
the short-term actions we are currently working on, and the long-term
actions we are planning.
Immediate Actions:
First, I have instituted a freeze on the hiring of criminal
investigators 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 will better position the agency
to address the report's observation that the Office of Law Enforcement
may not have the appropriate balance of criminal investigators and
regulatory inspectors.
Second, I have shifted oversight of the Civil Monetary Penalties
Fund (also known as the Asset Forfeiture Fund) from NOAA's National
Marine Fisheries Service (NMFS) to NOAA's Comptroller. This
intermediate step will begin to address the IG's criticism that
internal controls over this fund are lacking, and that efforts are
required to ensure proper use and verification of the funds. The IG is
in the process of conducting a Forensic Audit on this fund. We will
further review this issue once we have the results of that audit.
Short-Term Actions:
In addition, I have asked for the following short-term actions:
1. To address the report's observation that NOAA lacks formal
procedures for sufficiently documenting decisions regarding penalty
assessments and settlements resulting in a process that provides the
appearance of arbitrary decision-making (subject to compliance with
applicable labor relations requirements), NOAA's General Counsel will
institute higher level reviews of penalties, permit sanctions, and
settlements to ensure consistency and predictability.
2. To address the perception among the regulated community and the
interested public that NOAA's regulatory processes and enforcement
actions are arbitrary and lack transparency, the Assistant
Administrator for Fisheries, working with our Office of Communications,
will improve communications on enforcement issues, particularly in the
Northeast. This effort will include actions to enhance understanding of
fisheries regulations as well as to ensure transparency of enforcement
actions.
3. To develop forward-thinking approaches to enforcement efforts
(including approaches to address the regulated communities concern of
complex, conflicting, and excessive administrative burdens) and to
assist NOAA leadership in formulating long-range policies for properly
executing the agency's enforcement actions to protect living marine
resources, I have asked NOAA General Counsel, the Assistant
Administrator for Fisheries and the Director of External Affairs to
develop specific objectives and detailed plans for a summit on law
enforcement practices to be held no later than June 30, 2010. This
effort will include a list of possible chairs and co-chairs, the
identification of possible facilitators, and a communications strategy.
Long-Term Actions:
In terms of longer-term actions, by March 21, NOAA will develop
strategies that:
1. Improve management information systems, including
recommendations on actions to take advantage of the internet to
increase transparency. This effort is intended to address current
system inefficiencies and data integrity issues, and it will enable
NOAA to more effectively use information to guide its decision making
and increase transparency in our enforcement efforts.
2. Implement standardized procedures for setting enforcement
priorities. The IG's report found that NOAA leadership has had minimal
involvement in setting enforcement priorities. Implementing standard
procedures for setting enforcement priorities will ensure consistency
among regions while addressing regional needs.
3. Strengthen enforcement attorney operating procedures,
prosecution of charged cases, and settlement actions. The IG report
identified a need for NOAA to undertake revisions to applicable
procedural regulations and penalty schedules. This effort will provide
greater consistency and clarity, and will reduce confusion among
affected industry parties.
4. Develop an outreach strategy to improve engagement with the
local fisheries community and the public. In addition to improving the
regulated community's understanding of fishing regulations and NOAA's
enforcement activities, this action is intended to increase rapport
between NOAA and fishermen, and lead to improved communications and
informal problem solving.
5. Review the NMFS Office of Law Enforcement's staffing and
procedures including both civil and criminal requirements, with a
specific focus on ensuring that criminal procedures are not applied to
civil offenses. NOAA's review should include an independent review by a
body familiar with administrative and operational procedures. The IG
report called into question the proportion of law enforcement staff
(i.e. criminal investigators versus uniformed enforcement officers),
and it suggested that staffing is disproportionate to agency functions
and operational need. The plan will be responsive to this concern, and
will take into account information and outcomes resulting from the
actions outlined above.
These ten steps are intended to begin to respond to the issues
identified by the Department of Commerce's Inspector General. NOAA will
build upon these steps to develop a comprehensive plan that responds to
all of the Inspector General's recommendations.
Our marine and coastal resources are of immense value to the
nation. Effective, fair, and transparent enforcement is critical to
ensuring the long-term sustainability of these resources. This is a
high priority issue for me and I am committed to addressing the IG's
recommendations and enhancing our efforts to work with the fishing
industry and public in a more constructive manner.
______
Response to questions submitted for the record by Dr. Jane Lubchenco,
Under Secretary of Commerce for Oceans and Atmosphere and
Administrator, National Oceanic and Atmospheric Administration
Questions from Chairwoman Madeleine Z. Bordallo (D-GU)
1. Can you explain why the Inspector General's report found that fines
assessed in the Northeast were 250 percent to 500 percent
higher than in other parts of the country?
Answer: We have been unable to replicate the comparison provided by
the Inspector General in his report, even using the raw data that was
provided to the Inspector General.
2. Ninety percent of NOAA's law enforcement staff are criminal
investigators, even though most infractions are misdemeanors.
Does the OLE have a ``criminal-enforcement-oriented
structure''? Does this structure reflect considerations of
better pay and benefits for investigators rather than mission
requirements?
Answer: The Office of Law Enforcement (OLE) currently has 145
special agents and 18 enforcement officers. Though most of the sworn
personnel within the agency are 1811 series criminal investigators, the
intent of the agency was not to create a ``criminal orientation'' when
they converted to this series nearly eleven years ago, but as a means
to assure the recruitment and retention of a well rounded and highly
qualified skill set. This was done because of the variety of
legislative mandates of the OLE, the vast geographic area covered and
the limited number of personnel available to cover these requirements.
In part because of this vast geographic area, the existence and
proximity of state enforcement partners who are authorized to respond
to and assist with the mission requirements of the OLE is invaluable.
OLE relies on state partners to conduct a very significant level of
patrol and inspection work. The states support the work of the OLE and
the United States Coast Guard. The analogy that is often used for the
cooperative enforcement program is that the OLE serves the
``detective'' role and the state partners are the ``cop on the beat''.
The states conduct a large percentage of the dockside and near shore
patrols, the Coast Guard conducts the off shore and deep water patrols,
and NOAA does the majority of the investigative work. The annual
percentage of the OLE budget for the state cooperative enforcement
program is approximately 30 percent of the total Enforcement budget.
Over the past three years, the program has generated an annual average
of 139,952 person hours per year and includes approximately 1,622
dedicated state marine law enforcement officers.
The premise of using special agents to meet mission requirements
within the OLE has been the primary approach of the agency almost since
its inception in 1970. Special agents were, until 1999, classified
under the 1812 ``fish and game'' series and were then converted into
the 1811 ``criminal investigative'' series. Under either series the
agents have conducted almost entirely the same type of both criminal
and civil investigative work with the specific factors of individual
cases serving to dictate the venue, civil or criminal, through which
the case would be pursued.
In the early 1990s the OLE began supplementing its special agent
staff with uniformed enforcement officers to conduct certain patrol and
inspection related activities. The primary impetus for this program was
the establishment of the Individual Fishing Quota (IFQ) program in
Alaska. The program afforded the assurance that vessels would off-load
only at certain ports and also required advance notice of landing which
ensured the agency could inspect a reasonable percentage of off-loads.
Enforcement officers were hired and stationed at or near those ports to
conduct IFQ enforcement work. The agency also hired a limited number of
uniformed enforcement officers in other regions to conduct patrol and
inspection activities. The program was not expanded extensively beyond
the IFQ program because in 2001 the state cooperative enforcement
program began as an alternative measure to cover some of the patrol and
inspection mission requirements.
Enforcement officers were classified within the 1812 ``fish and
game'' series which was eliminated by OPM in 2008. At that time
agencies with personnel in the 1812 series were required to reclassify
them into the 1811 criminal investigator series or 1801 general law
enforcement category. All OLE enforcement officers were reclassified
from the 1812 series to the 1801 general law enforcement series.
Recruiting and hiring the highest potential level of skill set
possible to meet the complex legal and vast geographic challenges of
the OLE has been the intent and objective of the agency. The 1811
criminal investigative series has afforded the OLE that ability for
several reasons. The 1811 series is the most widely recognized and
utilized series by the many federal law enforcement agencies. The 1811
series therefore provides a large recruiting source for well-trained
and experienced agents who have an interest in moving into the mission
area of the OLE. There are somewhat more enhanced benefits provided to
OLE employees in the 1811 series, relative to those in the 1801 series.
These benefits include, but are not limited to, participation in the
law enforcement special retirement program, higher potential pay
levels, and coverage under the provisions of the ``good Samaritan''
act.
3. Over the last decade, what have been the uses of the Asset
Forfeiture Fund?
Answer: The provision of the Magnuson-Stevens Fishery Conservation
and Management Act that establishes the Asset Forfeiture Fund (Fund)
specifies that it may be used for a number of different purposes to
include: ``...(C) any expenses directly related to investigations and
civil or criminal enforcement proceedings, including any necessary
expenses for equipment, training, travel, witnesses, and contracting
services directly related to such investigations or proceedings''.
Thus, the Asset Forfeiture Fund has been utilized:
(1) By Office of Law Enforcement agents and the General Counsel
Enforcement and Litigation attorneys for both domestic and
international travel to support numerous enforcement requirements;
(2) To purchase required equipment including, but not limited to,
computers, copiers, vehicles, and firearms;
(3) To support contract services including, but not limited to,
services for the Case Management System, research, litigation and legal
assistant activities, financial analysis and collections, expert
analysis and some forensics work, expert witness services, freezer
facilities for the temporary maintenance of seized product, vessel
assessment surveys for seized vessels, and the security and docking of
seized vessels;
(4) To support expenses related to investigative operations such
as the purchase of illegal product during undercover operations and
payment for rewards;
(5) For a high percentage of all training provided to newly hired
employees to attend the Federal Law Enforcement Training Academy; and
(6) To pay for various computer upgrades and data information
systems for the agency.
Questions from Republican Members
1. The IG report recommends that overall fisheries management would
benefit if enforcement were targeted better to meeting the
goals of the specific fishery management plans. This seems to
be a simple concept. Why has it not been implemented? Why
aren't regional law enforcement personnel under the direction
of the regional administrators or at least why isn't there
better coordination between the regional management goals and
the headquarters enforcement personnel?
Answer: While the concept of targeting enforcement action to
specific fishery management plans is simple, execution of those plans
is greatly complicated by multiple mission requirements supported by
the same resources. Enforcement staff address commercial fishing
enforcement, sanctuary enforcement, import and trade restrictions,
marine mammal protection, and the protection of marine endangered
species, in addition to supporting State marine conservation mission
requirements when federal laws are violated through commerce. Focused
enforcement occurs when possible using fishery management plan specific
requirements which are based on priorities established in conjunction
with the staff of the Regional Administrators' offices. NOAA Office of
Law Enforcement's (OLE) management staff and Office of General Counsel
for Enforcement and Litigation (GCEL) regional attorneys work closely
with Regional Administrators and their staffs to understand and
establish priorities.
OLE staff report to Fisheries Headquarters in recognition of
mission requirements (such as Domestic laws supporting treaty
obligations, Sanctuary/Monument Enforcement, support for State marine
conservation mission requirements, etc.) that exceed Fishery Region
responsibilities and authorities.
Setting priorities is an important tool for allocating resources to
help assure an effective enforcement program. As priorities are set, we
must take into account the overarching goal to assure compliance with
all of the laws NOAA has the responsibility for implementing. The
Inspector General's report has asked us to assure that there is more
involvement at the NOAA management level to assure that priorities are
established, confirmed, and met at that level.
NOAA is implementing a more formal approach for OLE and GCEL to
validate Regional enforcement priorities and integrate them with
national priorities. The process, laid out in Appendix 6 of NOAA's
March 18, 2010 official response to the Office of Inspector General's
January 21, 2010 report on NOAA Fisheries Enforcement Programs and
Operations, will be defined in a plan to be finalized by July 29, 2010.
The approach will include a high level (Assistant Administrator for
Fisheries and NOAA General Counsel) annual review of the effectiveness
of enforcement over the last year to be informed by prior consultation
with appropriate stakeholders. The annual review will also establish an
approach, criteria, and a timeline for determining regional and
national priorities for the coming year. Subsequent steps for the
establishment of annual priorities at both regional and national levels
will include outreach, assessment of available resources, public
comment, consultation with General Counsel, and ultimately approval by
the Assistant Administrator for Fisheries.
2. The IG report found the NOAA data systems to be unreliable. The
report found ``weaknesses'' in GCEL's and OLE's current case
management information systems--in particular, data that are
missing, entered into the systems inconsistently, or vague. In
addition, the report noted that ``neither OLE nor GCEL is able
to generate data from their management information systems on
recidivism rates, which is important for assessing deterrence
and therefore program effectiveness.'' Why is there no law
enforcement data tracking system within either the Office of
Law Enforcement or NOAA General Counsel? Wouldn't such a
tracking system help identify repeat and serious offenders?
Answer: The NOAA Office of Law Enforcement (OLE) and Office of
General Counsel for Enforcement and Litigation (GCEL) operated from a
shared system known as Enforcement Management Information System
(Information System) for many years. Prior to 2004 that system was
determined to be antiquated and inadequate for the needs of the OLE.
GCEL, however, found the system to be adequate to meet their needs at
the time. After several years of planning and acquisition work, OLE
updated their system and in 2006 converted to a new system known as Law
Enforcement Agencies Data System (LEADS). The new OLE system included a
``feed'' to the Information System for continuing use by GCEL. Several
years later, GCEL found that they were experiencing deficiencies with
the Information System and began work to replace it as well. Since that
time, the new system within OLE known as LEADS has also come to the
point of requiring updates and transition to a ``next generation''
system. Therefore, the OLE and GCEL are working collaboratively with
our vendors to assure the implementation of a new system for GCEL and
upgraded system for OLE that will synchronize the appropriate and
necessary data exchanges to keep both systems up-to-date and timely.
The existing system does allow us to determine if a specific
individual is a recidivist. However, it does not have a separate or
individual search function to display actual rates of recidivism. If
this function were enhanced, it could be used to target specific trends
in certain categories of violations or over extended time frames to
more effectively identify problem areas.
As part of our response to the January 2010 Office of the Inspector
General Report, we are reviewing our current systems, and will make
improvements as needed, to ensure OLE and GCEL have more efficient and
effective data management processes.
3. According to the IG Report, recommendations on the number and
percentage of criminal investigators in NOAA Office of Law
Enforcement were made in a similar report in 1998 yet again are
repeated in this report. Why did the agency continue to hire a
higher and higher percentage of criminal investigators despite
the IG recommendation?
Answer: The 1998 Office of Inspector General (OIG) Report
references a ``Role and Deployment Study'' conducted by the NOAA Office
of Law Enforcement. The 1998 OIG report questions that study's value by
suggesting that predetermined constraints prevented the study from
considering all available options. The report cites the fact that the
list of self imposed constraints set by the Chief of Enforcement
(Chief) included a requirement to achieve a 1:1 ratio of special agents
to fishery patrol officers. It further states that the Chief imposed
the constraints because of budget limitations and direction from the
Assistant Administrator for Fisheries, as well as several other
factors. The OIG then went on to point out that:
``these constraints prevented the study from evaluating all
available options for Enforcement to achieve efficiencies and
effectiveness. For example, adopting a 1:1 ratio of special
agents to fishery patrol officers will reduce the number of
agents and increase the number of officers. One reason given
for this constraint was to increase Enforcement visibility.
However, by dictating that increased visibility be achieved by
reducing special agents ignores the option of increasing
visibility through greater use of existing contracts with other
enforcement organizations, such as state enforcement
organizations.''
The subsequent recommendations provided to the Assistant
Administrator and the Chief were to further evaluate the impact of the
constraints to determine if they were appropriate and to initiate a
staffing and deployment plan for Fiscal Year 1999 that included all 164
full-time equivalent personnel. The 1998 OIG report did not address the
use of criminal investigators. It called into question the ratio of
special agents to enforcement officers that had been suggested by the
former Chief and former Assistant Administrator.
After concluding a 1999 pilot study on the use of the cooperative
enforcement program through a partnership with the state of South
Carolina, the agency determined that it would be effective to pursue an
expansion of the cooperative enforcement program. The Administration
and Congress agreed, and funding was appropriated in 2001 to support an
expansion of the cooperative enforcement program approach through
agreements now known as Joint Enforcement Agreements. That program has
been funded every year since 2001 and now includes partnerships with
every U.S. coastal state and territory, with the exception of North
Carolina. Over the past decade, the Office of Law Enforcement (OLE) has
operated with the understanding that the state agencies would
supplement the patrol and inspection aspect of its mission through the
cooperative enforcement program. Therefore, the OLE continued to hire
special agents to focus on conducting investigative work.
Though the use of criminal investigators to staff the special agent
positions was not directly addressed in the 1998 report, it is very
clearly identified as a subject for review in light of the 2010 report.
As part of the NOAA response to the 2010 report, we will conduct a
workforce analysis to determine the proper mix of personnel within the
OLE, as recommended by the OIG.
On February 5, 2010, at the direction of Dr. Lubchenco, NOAA placed
a freeze on the hiring of criminal investigators until the workforce
analysis can be concluded. At such time as that analysis is completed
we will make further determinations on the appropriate staffing of the
OLE.
4. Why don't the General Counsel staff who work on fisheries cases
work for the Fisheries AA? Why do all of the NOAA General
Counsel staff work for the NOAA Administrator rather than the
line offices they service?
Answer: NOAA enforcement attorneys support more than just a single
line office. For example, they not only support the National Marine
Fisheries Service, but also the Office of National Marine Sanctuaries.
All NOAA General Counsel attorneys (including enforcement attorneys)
report to the NOAA General Counsel, who reports directly to the NOAA
Administrator.
5. How much does NOAA rely on state for law enforcement through
Cooperative Enforcement Agreements? Please include in this
explanation the percentage of funding, man hours, violations
reported, or some other meaningful measure to quantify the role
of the states in NOAA fisheries enforcement. How does NOAA's
reliance on states vary from state to state or region to
region?
Answer: The NOAA Office of Law Enforcement (OLE) relies on the
state partners to conduct a very significant level of patrol and
inspection work. The states support the work of the OLE and the United
States Coast Guard. The analogy that is often used for the cooperative
enforcement program is that the OLE serves the ``detective'' role and
the state partners are the ``cop on the beat''. The states conduct a
large percentage of the dockside and near shore patrols, the Coast
Guard conducts the off shore and deep water patrols, and NOAA does the
majority of the investigative work. The annual percentage of the OLE
budget for the state cooperative enforcement program is approximately
30 percent of the total Enforcement budget. Over the past three years,
the program has generated an annual average of 139,952 person hours per
year and includes approximately 1,622 dedicated state marine law
enforcement officers.
The OLE works throughout all coastal areas of the U.S., and staffs
over 50 duty stations with a current staffing of 163 sworn employees
consisting of 145 special agents and 18 enforcement officers. In some
cases, thousands of miles may separate one OLE agent from another. In
part because of this vast geographic area, the existence and proximity
of state enforcement partners who are authorized to respond to and
assist with the mission requirements of the OLE is invaluable.
NOAA is currently undertaking a workforce analysis of OLE. We will
take into consideration the impact and dynamics of both the state
partnerships and the role of the United States Coast Guard when
conducting the workforce analysis to determine proper staffing levels
for the OLE.
6. How much funding is in the FY2011 budget request for Cooperative
Enforcement Agreements with state enforcement agencies? How
does this compare to previous years? Should this funding be
increased to meet NOAA's enforcement needs?
Answer: The FY 2011 Budget Request for Cooperative Enforcement is
$18.8 million; the FY 2010 Request was $18.6 million. In FY 2009, the
request was approximately $17.6 million, and the program had been
roughly similarly funded for a number of years prior to FY 2009. Though
some states seem to be limited in terms of the amount of funding they
can use effectively and are therefore not willing to consider providing
more Joint Enforcement Agreement work, many states remain open to
conducting additional federal enforcement work within the scope of the
Joint Enforcement Agreement program.
7. Do you agree that data collection, basic fisheries science, and
enforcement are the responsibility of NOAA?
Answer: Yes, based on the mission requirements set by the
Department of Commerce and established by our statutory provisions,
federally managed fisheries are inherently NOAA responsibilities.
However, it is important to acknowledge that partnerships with states,
through the cooperative enforcement program, have been an invaluable
complement to NOAA's enforcement efforts. Under this program, state
enforcement partners conduct a very significant level of patrol and
inspection work related to marine enforcement. Additionally,
cooperative research projects with fishermen, universities, and other
groups have enhanced NOAA's ability to collect data and conduct
fisheries science. While inherently NOAA's responsibility, cooperative
enforcement with States and Territories and cooperative research remain
vital programs through which NOAA addresses these stewardship
requirements.
8. Regional NOAA General Counsel personnel and the Coast Guard both
participate in regional fishery management councils. Is there a
need for other NOAA law enforcement personnel to attend all
council meetings?
Answer: In addition to the participation by NOAA General Counsel
and the U.S. Coast Guard, NOAA Enforcement personnel also participate
in Council meetings and processes. The Special Agents in Charge of each
Office of Law Enforcement (OLE) Division attend council meetings and
participate in the various law enforcement committees of the fisheries
management councils. Their access to and participation in developing
regulations varies somewhat between councils. We affirm the need for
continuing the practice of OLE personnel attending all council
meetings, particularly to participate in all enforcement committee
deliberations and to present an enforcement report to the councils at
each meeting. What may perhaps be missing is a standardized process for
all eight councils to assure that, within certain protocols,
consideration of enforcement requirements is given formal review and
documented in a manner that assures appropriate vetting within the
council process.
9. You have recommended that NOAA set up a law enforcement summit. Do
you intend to just hold one national summit or do you plan to
hold these in each of the regions? Do you plan on personally
attending any of the law enforcement summits?
Answer: We plan to hold a National Enforcement Summit, and I plan
to attend. The goals for the Summit and additional outreach surrounding
the Summit are to develop forward looking ideas in areas of
communication, priority setting, and program implementation, to help us
achieve an enforcement program that ensures fair and effective
protection of the Nation's natural resources in NOAA's areas of
responsibility. Plans for the Summit are well under way. We are working
with the U.S. Institute for Environmental Conflict Resolution (U.S.
Institute)--a well-respected agency with the skills and experience--to
lead all the participants in a useful Summit.
The U.S. Institute's plan for the Summit includes:
Identifying a Summit facilitator drawing on the National
Roster of Dispute Resolution and Consensus Building Practitioners, and
providing continuing oversight, coordination, and project management.
Contacting key persons, organizations, and agencies that
have been involved in past fisheries enforcement issues to design a
structure for the planning process including key events, milestones,
schedule, Summit duration, agenda outline/topics, participants, and
communications strategy. The participants of this design planning
process will remain engaged as summit design is finalized.
Working with the participants identified above and other
key stakeholders identified during these discussions to finalize Summit
plans including objectives, a final agenda, event logistics, a
communication strategy, and a final list of participants.
Facilitating the actual summit.
Preparing a final report, including participant review
and comment, and meeting with NOAA management to review the process and
lessons learned, and to discuss follow-up plans for actions identified
in the summit.
At this time, there are no plans to hold regional law enforcement
summits. However, NOAA has plans to increase its outreach efforts to
address concerns with the enforcement of commercial fishing
regulations. They include:
Fisherman's forums held in conjunction with Fishery
Management Council meetings,
Conducting a pilot project to test the value of a Web-
Portal and Repository to improve public access to regional regulatory
requirements,
Publication of easy-to-read compliance guides,
A Frequently Asked Questions web link for enforcement
related issues,
Review of ``compliance assistance programs'' utilized by
other regulatory agencies, and
Exploration of the value of a Fisheries Enforcement E-
mail ListServ to better distribute information to constituents.
10. According to the report, NOAA General Counsel's office suggested
that ``prosecution of each case must be assessed based on its
own individual merits and circumstances.'' The same person then
goes on to state that there is a small and extreme minority who
``regularly violate regulations.'' However, the IG report
states that the data management system at NOAA is so inadequate
that ``neither OLE nor GCEL is able to generate data from their
management information systems on recidivism rates, which is
important for assessing deterrence and therefore program
effectiveness.'' How would you respond to this apparent
disconnect?
Answer: Current data systems within the Office of Law Enforcement
and Office of General Counsel for Enforcement and Litigation (GCEL) can
be queried to determine if an individual is a repeat offender. Past
case dispositions are a matter of record and can accurately and readily
be determined. The Inspector General's report recommends an inherent
part of our data management system be the capability to conduct more
general queries of collective data to conduct analysis and determine
trends. Such a capability would be helpful for use in determining
enforcement priorities, identifying weaknesses in the regulatory
system, and, most importantly, supporting more focused direction of
enforcement activities in problem areas.
The matter of establishing a fair and transparent process for
assessing fines and making prosecutorial determinations by the Office
of General Counsel is being addressed through a number of measures
under the direction of Lois Schiffer, NOAA General Counsel and myself.
We have recently shifted the decision making in these matters to the
headquarters level. Additional new measures to establish schedules,
protocols, and other steps to assure consistency and fairness are being
considered as well.
11. Your plan for addressing the recommendations of the IG includes
better communication with the industry. As you know, there was
a rally held the same day as the Subcommittee hearing that
included a large number of recreational and charter fishermen
who are concerned that their livelihoods are being compromised
by fishery closures based on what they consider faulty or
incomplete science. While this was not an issue examined by the
IG for this report, this seems to be a similar case of NOAA not
being able or willing to do its basic duties and/or not
communicating well with the regulated community. To make
matters worse, the FY2011 budget flat-lines the fisheries stock
assessment account which will not help matters. Should we
consider having the IG take a look at this issue as well?
Answer: On March 23, the Assistant Administrator for the National
Marine Fisheries Service, Eric Schwaab, announced the appointment of
Russell Dunn as the NOAA Fisheries National Policy Advisor for
Recreational Fisheries and the appointment of the 22 members of the
recreational fishing community from around the Nation to a Recreational
Fisheries Working Group to provide expertise on saltwater recreational
fishing to NOAA's Marine Fisheries Advisory Committee. In addition, on
April 16 and 17 we held a National Recreational Fishing Summit.
These actions fulfill a pledge I made to the recreational fishing
community to put in place the national advisor to help lead NOAA's
efforts to create a stronger and more productive partnership between
NOAA and America's saltwater angling community.
With regard to stock assessment funding, while there is no
substantial increase in the FY 2011 Budget Request ($51.0 million in FY
2010 to $51.7 million in FY 2011) the program has grown from $31.6
million in FY 2008 to $51.7 million in FY 2011. In addition, the FY
2011 Budget Request includes $9 million for the Marine Recreational
Information Program, which also has recreational data collection
components.
12. NOAA seems to have a systemic problem with relating directly with
the fishing community in some regions - New England in
particular. Congress had to require the Science and Statistical
Committees to meet in conjunction with the Council meetings so
that fishermen could actually see how their harvest levels were
developed. It wasn't until Congress forced the agency to do
cooperative research that we got scientists on fishing boats so
they could see what the fishermen were seeing. It wasn't until
Congress required Marine Mammal Take Reduction Teams which
included fishermen for NOAA to listen to fishermen before they
regulated their fishing activities in relation to marine
mammals. How do you plan to repair the trust between the agency
and the regulated community without further Congressional
mandates?
Answer: I am committed to rebuilding trust between NOAA and our
regulated fishing communities. I personally have participated in
numerous meetings to directly engage our constituents, particularly in
New England, but also in other parts of the country. I have also not
focused solely on one sector within our constituency. I have met with
commercial fishermen, recreational fishermen, environmental groups,
scientists and others to discuss the ongoing challenges we are facing
in fisheries management. NOAA is also in the process of planning two
key meetings. The first is our recreational fishing summit, which was
held in April. The Summit focused on engaging our recreational
constituents in a constructive dialogue to generate possible solutions
to the issues they have identified, such as improvements in data
collection. NOAA is also planning a summit to discuss our enforcement
activities with our constituents. The National Enforcement Summit will
focus the discussion on options NOAA could pursue to improve our
enforcement program. As we move forward, my leadership team, in
particular Eric Schwaab the Assistant Administrator for Fisheries, and
I will continue to engage with the fishing community to strengthen our
relationship.
13. You were quoted in a recent press release as saying, ``We can't
manage effectively without trust.'' Yet fishermen seem to be
more angry at the agency than in recent memory. It probably
doesn't help that a number of high profile initiatives which
have been started since you took office are viewed as having
the outcome of fewer fishermen and fewer fishing opportunities
including: the Marine Spatial Planning initiative that will
remove areas available for fishing; the Catch Shares initiative
that is taking money away from traditional fisheries needs such
as cooperative research and stock assessments and moving it
toward fisheries management systems that encourage less
participation; a proposal for a new National Climate Service
which will certainly take interest within the agency away from
fisheries management; a budget request that funds one new
satellite program rather than provide increases to fisheries
management needs, etc. All of these in combination seem to be
an anti-fishing agenda for this administration at a time when
the jobless rate is at or above 10 percent. Can you tell
fishermen why they should trust this management team at NOAA?
Answer: I am committed to rebuilding trust between NOAA and the
fishing community and working with them to achieve sustainable
fisheries, as required by the Magnuson-Stevens Fishery Conservation and
Management Act. I personally have participated in numerous meetings to
directly engage our constituents all around the country. Using what
I've heard to inform our way forward, my overarching goal is to
strengthen our use of an ecosystem approach to management, grounded in
sound science, to achieve sustainable fisheries and vibrant coastal
communities. Attaining this goal will not be easy. It will require
engagement by members of the fishing community, scientists, managers,
the environmental community and the public at-large.
Our new initiative on catch shares is intended to increase the use
of these programs, where and as appropriate, to support sustainable
fisheries and more resilient coastal communities and economies. We
recognize that basic scientific information, including cooperative
research and stock assessments, are critical to the success of
fisheries management, and catch shares is not designed to reduce or
jeopardize such critical information needs.
The establishment of a NOAA Climate Service is a key goal for our
agency, and is an issue that will have important impacts on our
management of fisheries as well as many other economic, environmental
and social sectors. The need for reliable, timely and relevant climate
information and services is growing daily. As an example, changes in
ocean conditions including temperature, currents and chemistry, can
lead to shifting food web and fish population distributions. The work
of a Climate Service is important for identifying these potential
changes and understanding how we might address any needed mitigation or
adaptation.
Part of the rationale for taking an ecosystem approach to
management is to provide a larger context for understanding how to best
balance the different uses of the ocean. Coastal and Marine Spatial
Planning (CMSP) is not about drawing lines on a map and restricting
fishing. Rather, it is a comprehensive planning process that involves
all resource managers, stakeholders and users (including fishermen and
fishery management councils) across the broad spectrum of sectors that
touch the ocean. It is intended to build upon and significantly improve
existing decision-making and planning processes, minimize user and use
conflicts, identify compatible uses and activities, and result in a
more coherent system of managing the diversity uses. CMSP is intended
to improve not only ecosystem health but to also facilitate sustainable
economic growth in coastal communities.
It is critical as well that we ensure the continuity of climate,
weather, and ocean observations, both in situ and from space. A key
effort within this context that I will continue to support strongly is
improved satellite management and acquisition. Targeted investments are
needed now, as proposed in the FY 2011 budget, to sustain and enhance
satellite observations including a major realignment of our polar-
orbiting satellite program. This will separate the civilian and
military satellite procurements, but retain sharing of common assets
such as ground system, and NASA will lead the acquisition for NOAA
satellites. We must preserve critical operational weather and climate
observations into the future.
An additional goal I have set for NOAA is to improve our
communication and engagement efforts. This includes not only better
explaining our science, but also strengthening our engagement with
constituents on the local, regional and national scale. The two summits
we are hosting, one on recreational fishing and one on enforcement,
exemplify our commitment to work with fishermen, the environmental
community, and the public to discuss ways we can address some of the
concerns that have been expressed.
______
Ms. Bordallo. I thank you, Dr. Lubchenco. If you would
remain seated there, my colleagues have arrived, and I would
like to call on my colleague Mr. Jones from North Carolina to
please come up and testify. Mr. Frank will be here any moment.
You can begin, Mr. Jones.
STATEMENT OF HON. WALTER B. JONES, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF NORTH CAROLINA
Mr. Jones. Madame Chairwoman, I want to thank you and the
Ranking Member for holding this hearing. I think that it is
most appropriate, and I will explain the reason I say thank you
and why it is most appropriate.
In January, the Inspector General of the United States
Department of Commerce released the findings of its seven-month
investigation into NOAA law enforcement, the Federal agency
responsible for enforcing U.S. fishery laws. The IG report came
in response to requests by the Massachusetts and the North
Carolina congressional delegations for an investigation into
allegations of overzealous commercial fisheries enforcement by
the agency, allegations frankly that I have heard for 15 years,
and had tried to get the IG's office to look into this before.
Among other things, the Inspector General's report found,
and I quote, ``systematic, nationwide issues adversely
affecting NOAA's ability to effectively carry out its mission
of regulating the fishing industry.'' These issues have
contributed significantly to a highly charged regulatory
climate and a dysfunctional relationship between NOAA and the
fishing industry.
NOAA's civil penalty assessment process is arbitrary and
unfair. NOAA workforce composition is dramatically misaligned
to its mission. Only about 2 percent of its caseload has been
criminal investigations, yet over 90 percent of its enforcement
personnel are criminal investigators. Ninety percent of its
enforcement personnel are criminal investigators. I think that
is so very important, a clear imbalance. This again is the IG's
report. NOAA's Assets Forfeiture Fund, which contains the money
from civil penalties it collects from fishermen, has a balance
of $8.4 million, but department officials, and I quote, ``are
not aware of the fund having ever been audited,'' and the
account under which they are maintained has weak, weak internal
controls.
This has led the IG to launch a forensic review of the
fund. And just yesterday, at a House Government Reform
Committee hearing in Massachusetts, the IG stated that early
results of that review show that proceeds from the fund were
spent on foreign travel by NOAA leadership. Madame Chairwoman,
the IG report confirms what fishermen have known to be true.
Federal fisheries law enforcement is out of control and needs a
major overhaul. That is one reason why last week an estimated
5,000 fishermen from around this country came to Capitol Hill
to rally for relief from an agency that is working against
them, not with them.
I would like to make one more point that was not in the IG
report, but which needs to be stated. According to NOAA's
budget documents, since 1997, the number of NOAA fishery
enforcement personnel has grown by over 40 percent. But
according to NOAA's latest statistics on the state of the
commercial fishing industry, from 1997 until 2006, landings of
fish in this country have dropped by 5 percent, and in my home
State of North Carolina landings have fallen over 66 percent.
In short, we have more law enforcement officers policing a
shrinking industry. Furthermore, when these statistics are
viewed in light of this report, it seems that NOAA's out-of-
control law enforcement tactics have been at least partly
responsible for chasing honest fishermen out of business. In
these economic times, when unemployment is 10 percent, and when
over 80 percent of seafood consumed here is imported, America
cannot afford to put more of its citizens out of work and cede
more of our markets to foreign producers like China.
I hope the agency understands how serious this IG report
is, given the major problems the IG has identified--including
serious discrepancies in enforcement, fines, and penalties. In
the interest of fairness and transparency, it seems appropriate
to put a hold on active prosecutions of fishermen until the
problems with NOAA law enforcement are resolved. The North
Carolina delegation has joined Chairman Frank and the
Massachusetts Delegation in asking NOAA to do this. I hope the
Chairwoman and the Ranking Member will join us in making sure
that the agency honors that request to put a moratorium on
these prosecutions.
In the meantime, I look forward to working with the
Subcommittee and the agency to quickly reform the policies,
procedures, and personnel responsible for these problems.
Madame Chairwoman, I would like to thank you again for this
opportunity to testify. At this time, I will ask unanimous
consent that a statement from the North Carolina Fisheries
Association President Sean McKeon be included in the record.
Ms. Bordallo. No objection. So ordered.
[The statement submitted for the record by Mr. Jones
follows:]
Statement submitted for the record by Sean McKeon, President,
North Carolina Fisheries Association
Thank you for this opportunity to present these comments related to
the recent Inspector General of the U.S. Department of Commerce
findings of its 7-month investigation into the programs and operations
of the National Oceanic and Atmospheric Administration (NOAA).
My name is Sean McKeon; I am the president of the North Carolina
Fisheries Association, a non-profit trade association representing the
commercial seafood industry primarily in North Carolina since 1952; our
membership consists of fishermen, seafood processors, dealers, and
myriad related businesses all affected by the decisions made by
National Marine Fisheries and their many departments, particularly its
enforcement arm, the subject of the OIG investigation.
As you are aware, the Report states, inter alia, investigators
uncovered ``...systemic nationwide issues adversely affecting NOAA's
ability to effectively carry out its mission of regulating the fishing
industry. These issues have contributed significantly to a highly-
charged regulatory climate and dysfunctional relationship between NOAA
and the fishing industry''--a glaring finding to say the least, and one
for which the fishing industry has been seeking relief for decades.
According to its website NOAA's mission is as follows:
``Stewardship of living marine resources through science-based
conservation and management and the promotion of healthy
ecosystems
NOAA Fisheries is responsible for the management, conservation and
protection of living marine resources within the United States
Exclusive Economic Zone. NOAA Fisheries also plays a supportive and
advisory role in the management of living marine resources in coastal
areas under state jurisdiction, provides scientific and policy
leadership in the international arena and implements international
conservation and management measures as appropriate. Under this
mission, the goal is to optimize the benefits of living marine
resources to the Nation through sound science and management. This
requires a balancing of multiple public needs and interests in the
sustainable benefits and use of living marine resources, without
compromising the long-term biological integrity of coastal and marine
ecosystems. Many factors, both natural and human-related, affect the
status of fish stocks, protected species and ecosystems. Although these
factors cannot all be controlled, available scientific and management
tools enable the agency to have a strong influence on many of them.
Maintaining and improving the health and productivity of these species
is the heart of our stewardship mission. These activities will maintain
and enhance current and future opportunities for the sustainable use of
living marine resources as well as the health and biodiversity of their
ecosystems.''
If in fact, as the Report highlights, current procedures and
policies adversely affect the Agency's ability to properly carry out
its mission, then both the ecological and economic responsibilities of
the Agency are not being satisfied. In the case of the commercial
fishing industry the Agency's lack of ability to carry out its mission
in these two areas (ecology/economy) is having overwhelming negative
and deleterious affects on the industry. Many coastal communities
continue to lose valuable infrastructure as a direct result of the
Agency's ``systemic'' failures related to its management of this
nation's marine resources.
With respect to penalties assessed fishermen the Report found,
NOAA's ``civil penalty assessment process is arbitrary and unfair''. In
many incidents fishermen are threatened with exorbitant fines for
seemingly mild infractions only to be told reduced amounts would be
accepted if made promptly and without going to Administrative Law
Courts. In other words, the OIG Report found many fishermen settled
with the Agency after being told paying a lesser amount was better than
going to the ALJ courts where fines could be increased even more than
the original amount. To many it has become a form of legalized
extortion, scaring people with the threat of unimaginable fines when
the real purpose seems to be collecting whatever could be collected
from the fishermen or related fish business. To make matters worse the
report noted NOAA's Asset Forfeiture Fund--which contains proceeds from
civil penalties it collects--has a balance of $8.4 million as of
December 31, 2009, but Department officials ``are not aware of the
fund's having ever been audited'', and that ``the account under which
they are maintained has weak internal controls'' leading the IG to
launch a pending ``forensic review of the fund''. This finding alone
makes the entire management structure and regime at NMFS suspect and
worthy of a more far reaching and prolonged investigation, particularly
of its in-house oversight.
For years fishermen have been complaining about ``being treated
like criminals'' when dealing with enforcement by the Agency. Not
surprising the Report noted, with a high degree of focus, that NOAA's
workforce composition is dramatically misaligned to its mission, ``only
about 2 percent of its caseload has been criminal-investigative, yet
over 90 percent of its enforcement personnel are criminal
investigators--a clear imbalance''. It seems in order to get paid more
money many in the enforcement department opt to become criminal
investigators, this despite the fact that 98% of all Magnuson
violations are civil misdemeanors, not criminal violations.
The Report also highlighted one important reality overshadowing the
entire federal fisheries management system; that is fishermen have been
asking for relief from the overly zealous and hostile environment that
they must by law deal with when interacting with NMFS. It is not
possible to continue to work on the water and provide the American
consumer with the seafood products they demand when the environment is
so hostile and ``out of control.''
Recently, in response to the OIG Report NOAA Administrator Jane
Lubchenco instructed the agency's head attorney and its top fisheries
manager to take immediate and long-term actions to improve the agency's
enforcement and legal operations and enhance its relationship with the
fishing community. She said, ``I take this report very seriously and I
want a comprehensive approach to addressing both the IG's observations
and the perceptions of fishermen. Fish are a public resource that
should be protected through proper regulation and enforcement for the
benefit of Americans, coastal economies and the marine environment. We
can't manage effectively without trust,'' said Dr. Lubchenco. ``Taking
these steps will help us resolve the issues identified by the Inspector
General and enhance our efforts to work with the fishing industry and
public in a more constructive manner.'' (Emphasis added)
Despite the reactions of Dr. Lubchenco to the Report, her
statements and her actions-item list (A ten point list outlined in a
recent statement by Dr. Lubchenco*) to fix the problem fall woefully
short of the type action necessary to truly change the modus operandi
of the Agency, which, as the Report indicates, is one of mismanagement
and open hostility to the United States Commercial Fishing industry.
Congress, not NMFS/NOAA should undertake the necessary steps to
address the ``systemic nationwide issues'' documented in the OIG
Report. Individuals who sit at the top of NMFS enforcement management
should, at very least, be suspended pending the outcome of these
hearings and the concomitant OIG investigation that is ongoing; the
forensic audit of the assessment funds, continued investigation into
``closed'' cases, etc. Congress should also see to it that prosecutions
of fishermen and or fishing businesses be suspended until this
investigation is complete, and Congress, not NMFS/NOAA should be
auditing the progress of steps taken to ensure compliance with
recommendations by the OIG.
In short, the OIG Report makes certain that federal fisheries
management policy and procedure are disasters and that direct
Congressional oversight, far in excess of what is currently in place,
ought to be implemented. For too long the perception has been (and that
perception has been shown to be a reality by the OIG Report) that NMFS
is an antiquated and bloated bureaucracy, out of control and
unaccountable to anyone including Congress. Hopefully, these hearings
will be the beginning of Congress taking the necessary steps to rein
this Agency in and bring relief to our nation's suffering commercial
seafood industry.
At this juncture in this nation's history, when so many of our
fellow citizens are out of work and looking to government for
assistance, it should be a national priority to make sure those who do
have jobs and work hard each and every day to provide for their
families, can go to work without fear of overzealous enforcement
agencies or fear of reprisals when they make their concerns known to
Congress and seek remedy.
Thank you for this opportunity to address this committee.
______
*NMFS list of fixes for OIG recommendations.
1. Subject to compliance with applicable labor relations
requirements, institute higher level reviews of proposed charging
decisions, penalties, permit sanctions, and settlements to ensure
consistency and predictability and to avoid the appearance of arbitrary
decision making.
2. Institute a freeze on hiring criminal investigators until a
work force analysis is done and approved by Dr. Lubchenco that will
address the appropriate mix of criminal investigators and regulatory
inspectors in the enforcement office.
3. Shift oversight of the Civil Monetary Penalties Fund (also
known as the Assets Forfeiture Fund), where penalties are accrued, from
NOAA's Fisheries Service to NOAA's comptroller.
4. Improve communications on enforcement issues, particularly in
the Northeast. This will include actions that enhance understanding of
fisheries regulations and transparency of enforcement actions
5. Develop specific objectives and detailed plans for a summit on
law enforcement practices to be held no later than June 30. The summit
will provide a venue to develop forward thinking approaches and long-
range policies for properly executing enforcement actions to protect
living marine resources.
NOAA will develop, by March 21, long-term strategies that:
1. Improve data integrity and address inefficiencies of the
management information systems used by the enforcement office and the
enforcement attorneys, including using the Internet to increase
transparency.
2. Implement standardized procedures for setting enforcement
priorities that will help ensure consistency among regions while
addressing regional needs. Ensure NOAA leadership has input
3. Strengthen enforcement attorney operating procedures,
prosecution of charged cases, and settlement actions. This includes
revising procedural regulations and penalty schedules for consistency
and clarity.
4. Implement an outreach strategy to improve relations with local
fisheries communities and improve understanding of fisheries
regulations and enforcement activities. This includes increasing
rapport between NOAA and fishermen in order to improve communications
and informal problem solving.
5. Develop a plan to review law enforcement staffing and
procedures with a focus on ensuring that criminal procedures are not
applied to civil offenses. Development of the plan should include
appropriate independent review.
______
Mr. Jones. Madame Chairwoman, before I close, if it is
proper, I would also like to put this in the record. It is a
bumper sticker that is going all around the Third District of
North Carolina, the home of commercial fishermen, that says,
``National Marine Fishery Service: Destroying Fishermen and
their Communities Since 1976.''
Ms. Bordallo. No objection. So ordered.
[NOTE: The bumper sticker submitted for the record has been
retained in the Committee's official files.]
Mr. Jones. Thank you, Madame Chairwoman. I yield back.
[The prepared statement of Mr. Jones follows:]
Statement of The Honorable Walter B. Jones, a Representative in
Congress from the State of North Carolina
Madame Chairwoman, thank you for holding this hearing on NOAA
Fisheries Law Enforcement Programs and Operations. This is an urgent
issue, and I am very pleased the Subcommittee is examining it today.
In January the Inspector General of the U.S. Department of Commerce
released the findings of its 7-month investigation into NOAA Law
Enforcement--the federal agency responsible for enforcing U.S.
fisheries laws. That IG report came in response to requests made last
year by the Massachusetts and North Carolina congressional delegations
for an investigation into allegations of overzealous commercial
fisheries enforcement by the agency; allegations frankly that I have
heard for 15 years and had tried to get the Inspector General's office
to look into before.
Among other things, the Inspector General report found:
``...systemic nationwide issues adversely affecting
NOAA's ability to effectively carry out its mission of regulating the
fishing industry. These issues have contributed significantly to a
highly-charged regulatory climate and dysfunctional relationship
between NOAA and the fishing industry'';
NOAA's ``civil penalty assessment process is arbitrary
and unfair'';
NOAA's workforce composition is dramatically misaligned
to its mission--``only about 2 percent of its caseload has been
criminal-investigative, yet over 90 percent of its enforcement
personnel are criminal investigators--a clear imbalance''; and,
NOAA's Asset Forfeiture Fund--which contains proceeds
from the civil penalties it collects--has a balance of $8.4 million as
of December 31, 2009, but Department officials ``are not aware of the
fund's having ever been audited'', and ``the account under which they
are maintained has weak internal controls'' leading the IG to launch a
pending ``forensic review of the fund''.
Madame Chairwoman, the IG report confirmed what fishermen in North
Carolina and across this nation have long known to be true: federal
fisheries law enforcement is out of control, terribly mismanaged and
needs a major overhaul. That is one of the reasons that last week an
estimated 5,000 fishermen from around this country came to Capitol Hill
to rally for relief from an agency that in their minds is working
against them, not with them.
I would like to make one more point that was not in the IG Report,
but which needs to be stated. According to NOAA budget documents, since
1997 the number of fisheries enforcement personnel at the agency has
grown by over 40%. But according to NOAA's latest statistics on the
state of the commercial fishing industry, from 1997 to 2006 landings of
fish in this country have dropped by 5%, and in my home state of North
Carolina, landings have fallen over 66%. In short, we have more law
enforcement officers policing a shrinking industry. Furthermore, when
these statistics are viewed in light of this report, it seems clear
that NOAA's out of control law enforcement tactics have been at least
partly responsible for chasing honest fishermen out of business. In
these economic times, when unemployment is 10% and when over 80% of
seafood consumed here is imported, America cannot afford to put more of
its own citizens out of work, and cede more of our market to foreign
producers like China.
I hope the agency understands how serious this report is. Given the
major problems the IG has identified, including serious discrepancies
in enforcement, fines, and penalties, in the interest of fairness and
transparency it seems appropriate to put a hold on active prosecutions
of fishermen until the problems with NOAA's Office for Law Enforcement
and Office of General Counsel for Enforcement and Litigation are
resolved. The North Carolina delegation has joined Chairman Frank and
the Massachusetts delegation in asking NOAA to do this. And I hope the
Chairwoman, and the Ranking Member, will join us in making sure the
agency honors that request.
In the meantime, I look forward to working with the Subcommittee
and the agency to quickly reform the policies, procedures and personnel
responsible for these problems.
______
Ms. Bordallo. I thank the gentleman from North Carolina,
Mr. Jones, for his testimony. Now we have another of my
colleagues, the congressman from the Fourth District of
Massachusetts, Mr. Barney Frank. You can testify.
STATEMENT OF HON. BARNEY FRANK, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF MASSACHUSETTS
Mr. Frank. Thank you, Madame Chairwoman. I appreciate your
accommodating Mr. Jones and myself. We were conducting some
votes in the Finance Subcommittee, and I appreciate the
Administrator and the Inspector General letting us impinge on
their time. The Administrator and the Inspector General were
both very generous with their time yesterday and came to a
hearing in Massachusetts, the city of Gloucester, the home
district of our colleague John Tierney at the hearing of the
Government Affairs Committee. We should note that the
Administrator was not the administrator when the great bulk of
these problems took place, and we are encouraged by her looking
into them, taking them seriously, and her commitment to go
forward.
I do think it is very clear that the approach that has been
taken by NMFS over a long period has been unduly adversarial.
There are fishermen who have violated the rules. There are a
handful who should be seriously prosecuted who were plotting
and planning to take actions that were illegal. The
overwhelming majority of these violations are violations that
come when a very complex set of regulations are imposed on very
hardworking people who don't always get to dot every I and
cross every T.
Also, as I note, we do have some real identification
systems, but the lines that are painted on the highways don't
work quite as well on the ocean, and there is a degree of
ambiguity there. So treating these fishermen as if they were
criminals in every case of a violation or in most cases of a
violation is clearly wrong. There has been an excess of that. I
think the Inspector General's point is very good one, that if
you look at the nature of this task, which is a regulatory
task, it is a law enforcement force overly weighted with
criminal investigators as opposed to people doing more of the
administrative work.
And I will repeat myself, as we do in this business quite
some time. I don't want to put people out of work, so I do
propose that some of the excess law enforcement that the
National Marine and Fisheries Service will be having be sent
over to the Securities and Exchange Commission, which appears
to be under-enforcing. So maybe we can get a balance and shift
some of the people. In other words, let us do less prosecution
of fishing and more prosecution of ``fishy,'' which is what we
have over there.
So I do hope that we are going to see very serious remedial
action. I want to say, when Mr. Jones talked about a
moratorium, we are not talking about giving people a free pass.
We are not talking about dismissing charges. We are saying
given what has happened, it is a good idea to hold off until we
can look at this. I spoke yesterday with the Administrator, and
there are cases that the Inspector General brought; they are
not huge in number. But there are some very disturbing examples
that ought to be looked at. And we, the Federal Government,
ought to be willing to admit we were wrong in some of these
cases and either unduly punished people at all or punished them
too harshly.
So I hope we will see this move. Fishermen are not the
enemies of fishing. I don't know any fishermen who want to be
the last people to do fishing. These are people who fish for a
living, but they fish as part of a culture. In the city of New
Bedford and the Town of Fairhaven that I represent, it is a
very important part, not just of the economy, but of the whole
social fabric of that community. These are people who do not
want to fish out the oceans. There are some disagreements about
how you do it, but they should be seen as cooperative. And it
is especially the case that we will never have, given the
vastness of the oceans, enough law enforcement people to make
people comply with a set of rules that they could be unfairly
done.
So it is in everybody's interest to promote a more
cooperative spirit. I also believe that we in the Congress take
some of the blame. I think the law that we passed in 2006, the
renewal of the Magnuson Act, created some of these problems. I
think the law itself was too rigid. And because the rigidity is
unsustainable, it has led to too much monkeying around with the
rules and regulations. If there was more explicit flexibility,
the regulations would not have to be as complex and as hard for
everybody to deal with. So I hope this Committee will also be
working with many of us. I know there is a large coalition of
people who want to see the law amended, and we will make the
job of everybody easier.
So I appreciate this chance to testify. I thank the
Administrator for the time she has given. I admire the good
work done by the Inspector General. I believe working together,
we can transform an angry situation into a much more
cooperative one, in the mutual interests of the environment,
the fishermen, and the economy. I thank you.
Ms. Bordallo. I thank my colleague, Mr. Frank from
Massachusetts, for his advice and his words here this morning.
I also would like to thank again my colleague, Mr. Jones and,
of course, you are excused. We will continue on with the
question period now of panel one. Thank you very much,
gentlemen.
My first two questions are for Mr. Zinser. Mr. Zinser, did
Director Jones authorize the destruction of documents while the
Office of Law Enforcement was under investigation? Yes or no.
Mr. Zinser. Yes, Chairwoman.
Ms. Bordallo. Was this action authorized by you or by NOAA?
Mr. Zinser. It was not authorized by me. And when I
informed the NOAA leadership of what we found, they did not say
that they authorized it either.
Ms. Bordallo. As an investigator, do you find it surprising
that someone under investigation, who is also trained as an
investigator, would think it appropriate to shred the files?
Mr. Zinser. Yes. I was surprised about it, and I guess what
came to my mind, Chairwoman Bordallo, was I wonder what the
Office of Law Enforcement would do if a fishing company that
they were investigating had done the same thing during the
course of their investigation.
Ms. Bordallo. How did you learn of this event?
Mr. Zinser. Well, we actually learned about it from an
informant who called us. But the shredding had already
occurred. We also coincidentally received an anonymous call the
very day that it was happening, but it came into our hotline,
and by the time that was processed, the shredding had been
completed.
Ms. Bordallo. Once you did learn of it, I assume you spoke
with Director Jones about it. What was his explanation?
Mr. Zinser. I did not speak to Director Jones personally.
My staff spoke with him. In the summary of the discussion that
I read, Mr. Jones indicated that they had been planning this
type of record reduction for over a year, and that the timing
was such that they had an opportunity to do it. And he
expressed to my staff disbelief that anybody would be
suspicious that such a shredding operation occurred. But we
requested a list of files that had been destroyed. That was
provided, and there were approximately between 170 and 180
files, and all but about 40 of them had been destroyed.
Ms. Bordallo. I thank you. I have a couple of questions for
Dr. Lubchenco. Do you know the last time that office undertook
such an effort, shredding documents?
Dr. Lubchenco. I do not.
Ms. Bordallo. How about you, Mr. Zinser?
Mr. Zinser. No, Chairwoman. That is one of the things we
are investigating, is what type of record retention schedule
the Office for Law Enforcement follows, and that would be a key
question in that.
Ms. Bordallo. Back to you, Dr. Lubchenco. I am sure you can
understand that to some on the outside, the timing of this
housecleaning would appear a little too coincidental and does
not give the impression of an office that supports full
disclosure of the facts. Is it appropriate to place Director
Jones on administrative leave or temporarily replace him in the
OLE pending the outcome of the investigation by the Inspector
General?
Dr. Lubchenco. Madame Chairwoman, I first learned of this
shredding incident on Monday of this week. I was quite
concerned. I do think that it does not look good. I almost
immediately called the Inspector General to consult with him
and ask if he thought it was appropriate for us to take any
steps to initiate an investigation. He told me that his office
was in the process of launching an investigation into this and
that they would keep us apprised of those findings, and we will
act accordingly once that investigation has come to completion.
Ms. Bordallo. So then in answer to my question about would
it be appropriate to place Director Jones on administrative
leave or temporarily replace him, would then your answer to
that would be it depends on the investigation? Is that what you
are telling us?
Dr. Lubchenco. I explicitly asked the Inspector General if
he would recommend any immediate personnel action, and he said
that he thought it would be appropriate to do the investigation
first and then take steps.
Ms. Bordallo. And, Mr. Zinser, how long do you think this
investigation will take?
Mr. Zinser. I don't think it will take that long. I think
there are some key interviews we have to do. We have to look at
their rules and procedures. I would imagine it would take
within 30 days.
Ms. Bordallo. So then you will make your findings to--you
will discuss this on the temporary replacement or----
Mr. Zinser. Yes. What we generally do, or what I try to do,
is as we do our work, as we do our investigations, and as we do
our audits and evaluations, I try to keep the management
informed of what we are finding, and I have committed to the
Under Secretary that as we proceed, we will inform her of what
we are finding.
Ms. Bordallo. All right. Thank you. I would like now to
call on the Ranking Member, Mr. Cassidy, for any questions he
may have.
Mr. Cassidy. Thank you. It seems like, Dr. Lubchenco, you
came in at a bad time. It seems like you inherited a mess
because it seems like your data systems not only for this are
not good, but I am hearing from fishermen that your data
systems for monitoring catch shares is not very strong either.
But focusing upon this, can you just comment why the IG found
this lack of data systems for either the Office of Law
Enforcement or the NOAA General Counsel? I mean, was the
previous group just totally kind of unaware of the issue?
Dr. Lubchenco. Congressman, I can't really speak to what
was in place, or the rationale for what was in place before I
came on board. I can tell you that it has been recognized for
some time within NOAA that our mechanisms to track the flow of
information concerning law enforcement cases has not been
sufficient, and that for over a year now there has been in
place steps to--there have been steps taken to put into place a
better management system. It entails doing some new computer
programming. I understand that there was an outside firm that
was contracted to begin transferring our system over to this
new system, and that that is in place.
This is one of the many areas that I have asked my General
Counsel and head of NOAA fisheries to pay special attention to
and to make sure that we have the right kinds of tracking
systems and the right kinds of oversight and checks and
balances so that we can be on top of this situation from here
on out.
Mr. Cassidy. Now again talking about the mess you received,
I have a note before me that the Office of Law Enforcement made
a similar report in 1998 regarding the relative mix of criminal
investigators to I guess civil investigators. And 10 years
later, it is still a problem. Any comment on why an apparently
specific recommendation was not enforced?
Dr. Lubchenco. Congressman, I don't know the answer to
that. We have committed to looking at what the response was to
the 1998 report and trying to understand better what changes
were made and why they were not sufficient to address the
issues that were raised.
I do think it is relevant to note that NOAA agents and
enforcement officers work closely with state law enforcement
and state agents in their practices, and it is partnership with
the state marine law enforcement officers and the U.S. Coast
Guard.
Mr. Cassidy. Can I follow up with you about that? Because I
spoke to folks from my state about that, and they think it is a
good system. I gather that they are doing a fair amount of the
enforcement in Louisiana. So one of their concerns was that
apparently the appropriations started off as 17.5 million
whenever the program began several years, and it is still 17.5
million, even though they have been asked to take on more and
more of the law enforcement responsibilities, so I gather. Is
there any hope to increase this assessment? Because if NOAA is
having a problem, maybe the states can pick it up sort of
thing.
Dr. Lubchenco. Congressman, I don't know the history of
those funds, but I will look into that and get back to you.
Mr. Cassidy. Again, when I was reading the material, Mr.
Inspector General, regarding Massachusetts, I wondered if maybe
the reason that he didn't find that much civil enforcement was
because the state agencies were doing the civil enforcement,
and they just kept the more criminal activity for the Federal
agencies. I am just trying to be fair, trying to understand the
situation in the context of what I learned from my state folks.
Any comment on that?
Mr. Zinser. Yes, sir. First of all, the data systems are
problematic, and it is hard to gather sufficient data on the
types of cases, the types of violations, assessments. For
example, the data systems will not tell you how many permit
sanctions have been issued or, for example, if they seize a
catch and wind up auctioning off the catch, that data is not in
the system. So the data is a problem.
The data that we looked at did include state enforcement
efforts because when the JEA partners find Federal violations,
they will write them up and transfer those to the NOAA Office
for Law Enforcement. We think the JEA program is a good
program. We actually issued a report on it last year. Our
recommendations there were that the Office for Law Enforcement
needed to work closer with the JEA partners to make sure they
knew what the JEA partners were doing, and that the Office for
Law Enforcement probably needed to have some system for going
out and doing like quality inspections for their JEA partners.
But we did do a report on that last year, sir.
Mr. Cassidy. OK. Can I ask one follow-up question? Are the
Joint Enforcement Agreements the same as the Cooperative
Enforcement Agreements?
Mr. Zinser. I believe so, yes, sir.
Mr. Cassidy. OK. Thank you.
Ms. Bordallo. I thank the Ranking Member, Mr. Cassidy. Now
I would like to call upon my colleague, Mrs. Shea-Porter, from
New Hampshire.
Ms. Shea-Porter. Thank you. Thank you both for being here.
First I would like to associate myself with the comments of
Congressman Frank. I come from New Hampshire, and what we have
been hearing is very consistent with what the Congressman
repeated. I am concerned about the lack of trust.
I really appreciate the fact that you are here, Dr.
Lubchenco, and I appreciate all of the work that you are doing
right now. But it seems to me that they need an ombudsperson at
this point. I know back in the 1990s, there was one for NOAA,
and it was not a congressional decision. I believe it was an
executive decision to have that position. But it does appear
that they need somebody that they could turn to that they felt
was an impartial person who could hear the stories, maybe help
them stay on top of some of the regulations so that there
wouldn't be any of the resulting fines.
So I wonder if you thought that would be a good idea,
something that you could support.
Dr. Lubchenco. Thank you, Congresswoman. That indeed was
one of the suggestions in the Inspector General's report, and
it is one of many of the recommendations in the report that we
are looking at very, very closely. I have asked my General
Counsel and my Director of NOAA Fisheries to take the lead in
preparing our response to the Inspector General's
recommendations. That is due on March 21. We are looking
comprehensively at all of the recommendations in the IG report.
That, in fact, is one of them.
Ms. Shea-Porter. OK. Thank you. And also, because the level
of tension is so high right now, everything that is said or
done is suspect, and they don't believe the science either, as
you know. Are there any steps that you are taking to help work
through that?
Dr. Lubchenco. I am greatly concerned by the less-than-good
relationship that we have with many fishermen, and agree that
because of the economic situation right now, because of the
need for closures that are driven by our requirements to
fulfill the law, that there are increasing tensions, if you
will. I think that it is very important for us to make
extraordinary efforts to be working closely with the fishermen
to help explain the rationale for many of our decisions, to
work with them as partners to try to identify some of the
solutions to many of these challenges, and certainly to have
confidence in the data that are being used.
We are looking very carefully at how we might do a better
job of that. It has only been highlighted by the Inspector
General's report. My Director of Fisheries, Eric Schwaab, will
have primary responsibility for helping us craft a strategy to
improve our relationships because I think that is--I mean, we
should have good relationships. We should be partners. We have
the same interests, and I would like to move us to a point
where in fact that is the case.
Ms. Shea-Porter. I am happy to hear that. I just would like
to state for the record that we New Englanders that live along
our coastline have saltwater in our veins. I know these men and
women. They are a very proud, hardworking group of people. They
have been by the sea for many, many years. They deeply care
about the environment. They care about the quality and the
quantity of the fish. And they really are honest and just
trying to earn a living. There is a tension, you are right. But
I would ask that we keep them, their families, and our
traditions in mind. Thank you very much. I yield back.
Ms. Bordallo. I thank the gentlewoman from New Hampshire,
Mrs. Shea-Porter. I do have a couple more questions for the two
of you before we bring on the final panel.
Mr. Zinser, what are the effects of having a nine criminal
investigator to a one uniformed officer ratio in the OLE?
Mr. Zinser. Well, I would say there are probably two
things. One is that you have a workforce of criminal
investigators, and understandably they want to do criminal
investigations. That is what they want to do for their career.
And the statute, particularly Magnuson-Stevens, doesn't have a
lot of criminal provisions. So you have a criminal workforce
who is basically assigned to do regulatory work. I don't think
that is proper. I think the criminal investigators ought to be
assigned to do felonies and serious criminal investigations.
The other impact is on the community. They should be able
to know when NOAA comes and talks to them whether they are
under regulatory inspection or under criminal investigation
because those two operations are very different and have very
different consequences. When a criminal investigator comes and
talks to you, you could potentially wind up in jail. When a
regulatory inspector comes and talks to you, you are going to
get a regulatory infraction. That is the biggest difference in
my mind.
Ms. Bordallo. Do they read them the rights when they are
investigating to the people? I mean, that is a question I would
have certainly. Like you said, when they talk to them, just one
word may make a difference.
Mr. Zinser. Madame Chairwoman, a couple of the specific
cases that we are following up on include allegations that
members of the fishing industry have asked OLE agents, can I
have an attorney, and the responses have been, it will only
make it worse for you.
Ms. Bordallo. Oh, really?
Mr. Zinser. That is the kind of thing we are following up
on.
Ms. Bordallo. Thank you. Why do the U.S. Fish and Wildlife
Service and the Environmental Protection Agency separate their
civil and criminal law enforcement capacities?
Mr. Zinser. The practice of separating regulatory
inspectors from criminal investigators is for the purpose that
I just mentioned. The constitutional rights of the citizens are
impacted by criminal investigators very seriously, and you
can't mix the two types of authority. Under regulatory
authority, you must let the inspectors into your workplace
because you are subject to their regulations.
Ms. Bordallo. Yes. I think my question would have been NOAA
does not.
Mr. Zinser. Yes.
Ms. Bordallo. But U.S. Fish and Wildlife and EPA does.
Mr. Zinser. Yes. Most Federal enforcement agencies do.
Ms. Bordallo. I see.
Mr. Zinser. I believe the reason NOAA does not--and I think
the explanation that we were provided is that having agents who
have criminal investigative qualifications gives them more
flexibility. They can do administrative cases, whereas if they
were just administrative investigators, they wouldn't have the
qualification to do criminal investigations. So I think the
leadership of NOAA thought that having criminal investigators
gave them greater flexibility in terms of being able to do both
kinds of cases.
Ms. Bordallo. In your opinion, if NOAA had heeded previous
recommendations to enhance the participation of the Northeast
industry and the fishery management process, would some current
challenges have been addressed?
Mr. Zinser. Yes. I think that the steps that are being
outlined now, if they had been taken earlier, would have
helped. I still think that the people on the ground in the
Northeast, the NOAA folks stationed there that work there every
day, I think their work relies on strong personal relationships
with members of the community. I think that aspect of it is
going to be very difficult to fix.
Ms. Bordallo. Thank you. And now, Dr. Lubchenco, I would
like to highlight several excerpts from the Inspector General's
report, and if you could tell me whether you agree or disagree
with the Inspector General's findings, and if not, why not.
``NOAA senior leadership needs to establish enforcement
priorities that improve integration and coordination with its
headquarters, fisheries management, and science center
elements.'' Do you agree?
Dr. Lubchenco. I agree.
Ms. Bordallo. ``The attorneys in NOAA, the General Counsel
for Enforcement and Litigation, do not have an internal
operations manual, and have broad discretion resulting in a
process of determining civil penalty assessments that appear
arbitrary because such decisions are at the sole discretion of
individuals, and there is no higher level review.''
Dr. Lubchenco. As far as I know, that is accurate. I know
that that is what the Inspector General found. I don't have any
information to counter that.
Ms. Bordallo. Do you agree or disagree there is a need for
greater consistency in the penalty schedule?
Dr. Lubchenco. I absolutely agree.
Ms. Bordallo. Are there no formal processes for documenting
decisions regarding fine assessments and settlement amounts?
Dr. Lubchenco. I think the processes that are currently in
place are insufficient, and that is one of the areas I am
committed to addressing.
Ms. Bordallo. Very good. Fishing laws and regulations are
highly complex, making compliance difficult even with the best
of intentions.
Dr. Lubchenco. That is absolutely true.
Ms. Bordallo. All right. I want to thank you both for
appearing today before the Committee. Now we will call on the
third panel.
[Pause]
Ms. Bordallo. The witnesses on this panel include
Lieutenant Colonel Bruce Buckson, Deputy Director, Florida Fish
and Wildlife Conservation Commission, Division of Law
Enforcement; and Mr. James Walsh of Davis Wright Tremaine law
offices.
I would like first to welcome Lt. Colonel Buckson and thank
him for appearing before the Subcommittee. And as I mentioned
for the previous panel, I would note that the red timing light
indicates that your time is concluded. But we will include your
full statement for the record.
Lieutenant Colonel Buckson, please proceed.
STATEMENT OF LIEUTENANT COLONEL BRUCE BUCKSON, DEPUTY DIRECTOR,
DIVISION OF LAW ENFORCEMENT, FLORIDA FISH AND WILDLIFE
CONSERVATION COMMISSION
Mr. Buckson. Thank you, Madame Chairwoman. I appreciate the
opportunity to be able to address the Committee on this very
important issue. I feel somewhat like a young man who is
running up and down the sidelines of a game, and he is saying,
put me in, coach, put me in, coach. And all of a sudden he is
put in, and you come to find out that maybe he is not a team
member. So I think that maybe some of the audience and the
Committee members, it may help if I give a little bit of
background on myself and also our agency, and clear up the
appearance that maybe we aren't team members, but we are
actively involved in fisheries enforcement, both state and
Federal.
As I said, I am honored to be a part of this quest for
excellence, and I hope my input about state perspective will be
valuable to the Committee. Just a short introduction. As you
said, I am Lieutenant Colonel Bruce Buckson with the Florida
Fish and Wildlife Conservation Commission. And in the rest of
the testimony, I will probably refer to that as FWC. It is a
mouthful as the full name of the agency.
I am a Deputy Director of the Division of Law Enforcement,
and I am in my 28th year of my career with the agency and
predecessor agency. I served as a law enforcement
representative on marine fisheries commissions and fisheries
management councils for approximately 12 years. Although I
still interact with the law enforcement committees and advisory
panels, the Florida seat on these boards is officially held by
one of my section leaders.
I have also served as the FWC law enforcement liaison to
our Federal partners in the NOAA OLE Southeast region. In
addition, I currently sit on the NOAA OLE Joint Enforcement
Agreement Advisory Committee. And I will refer to that as JEA
in the future.
I think my few moments here with this Committee would be
best spent if I focus on the relationship with fisheries
enforcement in the state and Federal partnership and the value
of that, and a little bit of a description on what that means.
The State of Florida has been a partner with NOAA OLE through a
Cooperative Enforcement Agreement, a CEA, since May of 1984.
That is the oldest agreement that I have a copy of, though
there has been some mention that there was a previous
agreement. So well over a quarter of a century we have been
involved as partners for fisheries enforcement at the Federal
level.
This agreement, as well as those that followed, has been
based on the premise that enforcement of all fisheries laws is
in the best interest of not only the nation, but also the
state. And further, it is based on the premise that there are
state enforcement personnel that are fully trained and equipped
and currently being used to enforce state fisheries regulations
that could be great assets to the enforcement of Federal
fisheries regulations.
Currently, the FWC, the Division of Law Enforcement, has
721 law enforcement positions. These are fully trained and
equipped law enforcement professionals who patrol the woods and
waters of the State of Florida. Over 500 of these law
enforcement positions are frontline enforcement officers or
investigators. Through our Cooperative Enforcement Agreement,
the CEA, with NOAA OLE, each of these officers are provided
training and authority to enforce select conservation
regulations identified in the Cooperative Enforcement
Agreement.
Late in the 1990s, we entered into contracts with NOAA OLE,
which was the first step in providing actual funding for
fisheries enforcement at the Federal level. These contracts
were somewhere in the range of probably 1996, -7 or -8,
somewhere in that range. I don't have the specific date. And
this was one of the first times that we had an official way to
get funding, Federal funding, for Federal fisheries
enforcement.
This was also the predecessor to what is called the Joint
Enforcement Agreement, the JEA. The JEA is the funding
mechanism, a vehicle to get funding to the states to do Federal
fisheries enforcement, based on the foundation of a Cooperative
Enforcement Agreement. A Cooperative Enforcement Agreement
actually provides the authorization, the deputization, whatever
term you want to use, to the states. The JEA is what gives some
funding to the state partners.
Through the CEA and the JEAs, the FWC--there are a lot of
acronyms there. I feel much like a Federal employee now.
Through the Cooperative Enforcement Agreement and the Joint
Enforcement Agreement, our agency has been able to provide the
use of approximately 500 patrol personnel for Federal fisheries
regulations that may otherwise be outside of the fiscal realm
of the NOAA OLE. These personnel for the most part are
uniformed patrol officers. While these officers are not solely
dedicated to enforcing Federal fisheries regulations, they have
the ability and authority to address Federal violations when
observed and, of course, when they are on targeted Federal
fishery patrol hours. This is clearly in the best interest of
the conservation at the state and the Federal levels.
One key point that I would like to make is a description of
how we view the JEA, the agreement with the NOAA OLE. The state
relationship with NOAA OLE is somewhat similar to what we might
view as a local police department having a uniformed patrol
officer in a detective squad. The patrol officers are the
visible first responders to accidents, crimes, and calls for
service. The detective squad handles in-depth investigations,
covert operations that are normally less visible to the public.
Conceptually, in the JEA or CEA, the state officers provide
that patrol function, and the OLE provides the detective
function. Obviously, there are necessary deviations from this
concept with regard to specific cases, and quite often the
egregious violations impacting state resources become joint
investigations, where both agencies participate. However, the
JEA concept strongly encourages the less egregious fisheries
violations to be handled as state violations whenever possible.
This patrol investigation or detective concept seems to be
extremely effective with the Joint Enforcement Agreements with
the states and territories that are participating. The
downside, as it was noted in the IG report, may be that NOAA
OLE agents are somewhat less visible, even though the
enforcement objective is being met. It is also important to
note that NOAA OLE agents have skills and expertise that go
beyond the state jurisdictional boundaries, and sometimes even
beyond the training and experience of some of our state
officers.
This has proven quite critical in addressing violations
that have significantly impacted Florida's fishing industry and
resources. It is exampled by a NOAA OLE case involved a see-
through dealer in the Florida Panhandle who over a period of
time mislabeled hundreds of thousands of pounds of Vietnamese
catfish as grouper. Grouper is a locally caught Florida fish,
and very popular in fish markets and restaurants. This
mislabeling was done to avoid paying tariffs on imported fish,
but significantly impacted Florida fishers by undercutting the
price of locally caught grouper.
This mislabeling issue gained widespread media attention
and prompted investigative reporting. Reporters obtained
samples of grouper from many restaurants and had the samples
analyzed, only to find they were not, in fact, grouper. This
impacted Florida fishermen, wholesale dealers, retail dealers,
restaurants and consumers. I believe this case helped restore
consumer confidence in the industry.
In trying to bring this to a close--and I apologize for
going over the time limit--I think it is key that the successes
to be able to be noted by the JEA and the Joint Enforcement
Agreement and the relationship that we have with the NOAA OLE,
it is a key to our success with resource protection. Thank you
very much for the opportunity to be able to testify.
[The prepared statement of Mr. Buckson follows:]
Statement of Lieutenant Colonel Bruce Buckson, Deputy Director,
Division of Law Enforcement, Florida Fish and Wildlife Conservation
Commission, Tallahassee, Florida
Chairwoman Madeline Z. Bordallo,
Thank you for the invitation to provide comments to the
Subcommittee regarding the recommendations in the recent report from
the Office of Inspector General (OIG) of the U.S. Department of
Commerce regarding NOAA Fisheries Enforcement Programs and Operations
(Final Report No. OIG-19887). I have provided a summary of my related
personal experience in fish and wildlife law enforcement at the state
level, specifically Florida, in a separate document.
It is most appropriate to set the foundation of the testimony I am
able to provide the Subcommittee through a brief introduction and
historical background of Florida's relationship with NOAA Office for
Law Enforcement (OLE). I will address the OIG's three primary concerns
in reverse order.
I am Lieutenant Colonel Bruce Buckson, Deputy Director of the
Division of Law Enforcement (DLE), for the Florida Fish & Wildlife
Conservation Commission (FWC). I am in my 28th year of my career with
FWC DLE. I served as Florida's law enforcement representative on Marine
Fisheries Commissions and Fishery Management Councils for approximately
12 years. Though I still interact with the law enforcement committees
and advisory panels, the Florida seat on these boards is officially
held by one of my Section Leaders. I have also served as the FWC law
enforcement liaison to our federal partners in the NOAA OLE Southeast
Region. In addition, I currently sit on the NOAA OLE Joint Enforcement
Agreement (JEA) Advisory Committee.
NOAA needs to reassess its OLE workforce composition to determine
if this criminal-enforcement-oriented structure is the most effective
for accomplishing its primary regulatory mission--
The State of Florida has partnered with NOAA OLE through a
Cooperative Enforcement Agreement (CEA) since May of 1984, nearly 26
years. (Though it is believed there were agreements before this date,
this is the oldest document available.) This agreement, as well as
those that followed, are based on the premise that enforcement of
fishery laws is in the best interest of the state and nation. Further,
there are state enforcement personnel and equipment currently being
used to enforce state fisheries regulations and these assets could be
used to assist with ensuring compliance with federal fishery
regulations as well.
This overview serves well as a launching point to provide some
views on the NOAA OLE workforce composition as it relates to criminal
investigators and uniformed officers. The FWC DLE mission is to protect
Florida's natural resources and people through proactive and responsive
law enforcement services. The FWC DLE mission is supportive of the
Agency overall mission of ``Managing fish and wildlife resources for
their long-term wellbeing and the benefit of the people''. Our law
enforcement motto is ``Patrol, Protect, Preserve''.
The FWC DLE currently has 721 sworn law enforcement positions.
These are all fully trained and equipped law enforcement professionals
who patrol the woods and waters of the State of Florida and adjacent
federal waters. Over 500 of the these law enforcement positions are
frontline enforcement officers or investigators. This number does not
include supervisors, pilots and specialty investigators. Through our
CEA with NOAA OLE each of these officers are provided training and
authority to enforce select federal conservation regulations identified
in the CEA.
Since 2001 FWC has also had a Joint Enforcement Agreement (JEA)
with NOAA OLE. The JEA builds on the foundation of the CEA's
authorization and serves as a mechanism to provide NOAA OLE state
partners with some funding for federal fishery enforcement efforts.
There are approximately 26 states and territories participating in the
JEA program. The JEA also provides an operations plan that is
cooperatively created with each state's conservation enforcement agency
and NOAA OLE.
Through the JEA, the FWC provides over 500 patrol personnel for
federal fishery regulations that may otherwise be outside of current
fiscal constraints of NOAA OLE. The majority of these personnel are
uniformed patrol officers. Though these officers are not solely
dedicated to enforcing federal fishery regulations, they have the
ability and authority to address federal violations when observed and
during targeted federal fishery patrol hours. This is clearly in the
best interest of conservation at the state and federal levels.
The state relationship with NOAA OLE is analogous to a local Police
Department's uniformed Patrol Officers and Detective squad. The Patrol
Officers are the visible first responders to accidents, crimes and
calls for service. The Detective Squad handles in depth investigations,
covert operations and are normally less visible to the public.
Conceptually in a CEA / JEA with NOAA OLE, the state officers provide
the Patrol function and NOAA OLE provides the Detective function.
Obviously there are necessary deviations from this concept with regard
to specific cases. Quite often egregious violations impacting state
resources become joint investigations. However, the JEA concept
strongly encourages the less egregious fishery violations be handled as
a state violation when possible.
This Patrol (State LE) and Investigation (NOAA OLE) concept is
extremely effective and efficient. The downside may be that NOAA OLE
agents are somewhat less visible, even though the enforcement objective
is being met.
The NOAA OLE agents have a skill set and expertise to go beyond the
state jurisdictional boundaries and sometimes beyond the training and
experience of the state officers. This has proven critical in
addressing violations that have significantly impacted Florida's
fishing industry and resources. This is exampled by a NOAA OLE case
involving a seafood dealer in the Florida Panhandle who mislabeled
hundreds of thousands of pounds of Vietnamese catfish as grouper.
Grouper is locally caught and a popular Florida fish for markets and
restaurants. The mislabeling was done to avoid paying tariffs on the
imported fish, but also significantly impacted Florida fishers by
undercutting the price of locally caught grouper. The mislabeling issue
gained widespread media attention and prompted investigative reporting.
Reporters obtained samples of grouper from many restaurants and had the
samples analyzed, only to find many of them were in fact not grouper.
This impacted the Florida fishers, wholesale fish dealers, retail fish
dealers, restaurants and consumers. Though this dealer was not the only
participant in mislabeling fish, the case helped turn the tide for
local fishers and restaurants. I believe this case helped restore
consumer confidence with regard to grouper, as well as other species.
Taking a criminal investigative approach to potential violations
carries a higher standard of proof than civil violations. This serves
primarily to protect the rights of those being investigated and ensure
a quality investigation. As well, there is often a potential that an
investigation of what begins as civil could lead to a criminal
violation, in which case criminal investigative standards would need to
be applied.
To summarize these comments in the context of the recommendation to
reassess the OLE workforce there are three points.
1. There has been a clear value in having NOAA OLE investigators
pursue some high profile and complex Florida cases.
2. The state conservation law enforcement contingencies are well
complimented by the investigators of NOAA OLE. The value of this
increased visibility for federal fisheries enforcement may not have
been fully considered.
3. Possibly most important is the fact that there is a significant
patrol function being accomplished by JEA partners.
Though some of these issues are acknowledged in the OIG report, it
is critical to consider all potential impacts of a drastic change in
NOAA OLE workforce composition and must be based on current
circumstances.
My comments to this point have been directed toward the third
recommendation, the reassessment of NOAA OLE workforce and specifically
from a state law enforcement partner perspective with the benefit of
two and half decades of experience.
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--
The second OIG recommendation is apparently being addressed through
GCEL initiatives to promote transparency, help ensure fairness and open
lines of communication with the regulated community. Relative to this
recommendation, FWC has recently had discussions with GCEL regarding a
more broad use of the summary settlement process for less significant
federal cases made by state officers.
NOAA senior leadership and headquarters elements need to establish
substantially greater management and oversight of the agency's regional
enforcement operations--
The final portion of my comments will be less specific and an
attempt to provide useful input on what I am viewing as a ``quest for
excellence''. My role as a state agency partner and not a specific
subject of the OIG report makes taking this view easier than it might
be for my federal partners. The comments are simply observations of
challenges facing conservation agencies. As well, I don't have the
information to contest the accuracy of the OIG report, nor do I believe
that is why I was invited to attend this hearing. The most important
objective is to rebuild the public's trust with regard to the mission
of protecting the living marine resources and their habitats.
From my observations there often seems to be a separation between
law enforcement and the conservation managers and scientists within a
conservation agency. This may be due to perceived differences in the
mission of each group. Because of this it seems that law enforcement
personnel in these agencies have often been viewed as ``unique'' or
``outsiders'' and sometimes simply a necessary evil within the agencies
and by the public. Conservation managers and scientists are most
interested in protecting the resources and less interested in how those
protections are implemented. The implementation of regulations is
precisely what law enforcement divisions are responsible to accomplish.
Quite often the law enforcement personnel themselves have
unintentionally helped create and often perpetuated the assumption that
they are different by inhibiting cross divisional interaction. As an
example, I remember a time many years ago when the law enforcement
offices of a conservation agency at the headquarters building were only
accessible to law enforcement personnel. This restriction was
implemented by only allowing the elevators to stop on the law
enforcement floor with the use of a special key.
Most interesting is that both law enforcement personnel and
managers/scientists are headed toward the same goal post, conservation.
Add to these somewhat differing viewpoints the impact both have on the
stakeholders and there is potential for disharmony. We must also
remember that most of the stakeholders are headed toward the same goal
post as well.
As a member of the Law Enforcement Committee (LEC) for the Atlantic
States Marine Fisheries Commission (ASMFC) in the mid 1990's, there was
a continuing struggle for the LEC to become an integral part of the
management process. It was clear that law enforcement was critical to
the success of each fishery management plan, but input from the LEC in
the planning process was not often requested. With the support of the
Commission leadership, law enforcement personnel committed to
participating in the fishery management boards, reporting the status of
the fishery management plans and any enforcement concerns to the full
LEC. Ultimately this information was provided to the full Commission.
The ASMFC Strategic Plan was revised to include a specific goal to
enhance law enforcement participation in the process. Today the law
enforcement committee members are clearly a part of these management
teams and the process.
I expect there are many other examples of failures and successes in
overcoming these pitfalls for multiple jurisdictions. As well, there
are programs and specific action items that can assist in resolving the
issues, but any successful program begins with understanding it is a
``people'' issue and may require some movement from comfort zones.
I believe the Florida Fish & Wildlife Conservation Commission is
doing a good job at working across Divisional and Sectional lines to
further the agency mission. This requires a diligent effort. Recently,
Colonel Jim Brown, the Director of the FWC Division of Law Enforcement,
began meetings with other Division Directors to calibrate our
enforcement priorities with their conservation priorities. I hope we
find we are on track, but I expect we will find it necessary to tweak
our operational plans. We have also planned to have similar meetings
with our stakeholders around the state. This is designed to explain our
mission, strategies and authorities while learning the needs and
expectations of the stakeholders, ultimately building confidence
through a transparent process.
I hope these comments prove helpful in rebuilding the public trust
in NOAA's efforts to protect the nations living marine resources.
______
Response to questions by Lt. Colonel Bruce Buckson
Questions from Chairwoman Madeleine Z. Bordallo (D-GU)
1. Could you expand upon your discussions with General Counsel for
Enforcement and Litigation regarding a more broad use of the
summary settlement process for less significant federal cases
made by state officers?
The Summary Settlement process is analogous to a traffic fine
schedule. It sets clear parameters based on specific violations, which
are then addressed by a specific penalty amount. These fines can be
applied and options explained onsite which tends to be a good
enforcement tool for both the Officer and the Recipient of the citation
when dealing with recreational violators, lesser violations or
violations that do not need further investigation.
FWC currently utilizes the Summary Settlement system while
enforcing most violations inside the Florida Keys National Marine
Sanctuary (FKNMS). This system has worked very well inside the FKNMS
and we have been in negotiations with GCEL to try and employ this
enforcement tool in the rest of our federal enforcement area of
responsibility.
Questions from Republican Members
1. Are state law enforcement officials allowed, under the Joint
Enforcement Agreements, to levy Federal fines or penalties? If
so, what kind of guidance are they given on how to set these
fines or penalties? If not, how are law enforcement actions
taken by state officials under these agreements?
Under the JEA Agreement, we do not levy fines or penalties. That is
the responsibility of the Southeast Region Office of General Council
for Enforcement and Litigation (GCEL). FWC currently utilizes three
different methods of enforcement as it relates to Federal fisheries
enforcement.
The first type is: Written Warnings--this provides a method of
documentation for all parties involved and generally serves as a
correction notice for the recipient. This most often is employed with
lesser violations or when the Officer's discretion determines that this
is the most appropriate form to generate compliance.
The second type is: State Citation--which is used per the JEA for
State Law violations that are detected during the course of Federal
Fisheries patrols. We are additionally encouraged to handle most
recreational cases with state enforcement practices that can be
addressed by either state or federal charges.
The third type: Federal Citation--which is used for federal cases
that follow NOAA guidelines for processing. These cases are documented
on NOAA approved FWC forms following a NOAA procedural checklist
provided by GCEL to ensure all pertinent information is provided in
order to proceed with either a follow-up investigation or prosecution.
No fine or penalty is levied by the state during interaction with the
recipient.
2. How has NOAA funding for Joint Enforcement Agreements changed in
the last ten years? Are the funding levels adequate for the
responsibilities that NOAA would like you to fulfill?
With the passage of the Magnuson-Stevens Reauthorization Act in
2007, forty-five (45) states, territories, commonwealths and U.S.
possessions became eligible to participate in the Cooperative
Enforcement Program (CEP). Within the CEP, OLE currently has JEAs with
twenty-seven (27) states, territories, and commonwealths. The primary
goal of the agreements is to enhance enforcement of Federal laws and
regulations. With that said, funding for the JEA Program has roughly
stayed the same for the last 9 years remaining around the 14 million
dollar mark and is overdue to be reviewed for increase. There are
multitudes of criteria that support an increase in funding starting
with increased operational cost for personnel and equipment. With
increased population come increased demands on the shared living
resources which are in need of protection. This creates a need for an
increase in patrols, equipment and personnel. Any program that remains
relatively level funded for more than a couple years falls behind
quickly due to an ever increasing inflation rate as measured by the
Consumer Price Index (CPI). In the case of the JEAs, the current
funding in 2009 dollars should be around $21.5M just to remain equal.
The 2001 funding, in 2009 dollars, is only worth $14.5M or has eroded
by roughly 17% due to inflation. Please see the attached letters from
the Gulf States Marine Fisheries Commission (GSMFC).
The demands that are put forth by the MSA to end overfishing have
challenged law enforcement entities to keep up with the Fishery
Management Councils attempts to comply with aggressive management
deadlines. The implementation of closed and restricted areas (MPAs,
HAPCs, Reserves, Preserves, Sanctuaries, Closures, Parks, Experimental
Areas, Etc.) has come without any resources to assist with the
enforceability of these closures. The ``Protection'' aspect has to be
generated by a cooperative effort of law enforcement and other related
staff. This is accomplished through patrol efforts that emphasize
education and community oriented policing, in hopes that there will be
compliance with these closures. Florida has over 170,000 square
nautical miles of closures that range out to 200 nautical miles off the
Florida coast. This is prior to implementing the most recent closure
off the Atlantic coast of Florida.
At least 1 Federal Reserve, 1 Habitat Area of Particular Concern
(HAPC), 4 Marine Protected Areas (MPA) and many other restrictions and
closures including an almost entire closure of the east coast waters
for snapper and grouper have been created off the Florida coast since
the inception of the JEA Program in 2001. This has come with no
increase in funding for enforcement.
The South Atlantic MPAs which include the ``North Florida, St.
Lucie Hump and East Hump'', receive no specific funding for Law
Enforcement. Law Enforcement was involved in the process of creation of
the MPAs for approximately 10 years and stressed the need for
additional funding to create support and accountability of these MPAs.
In an effort to level expectations of the Council, managers and
stakeholders, the Law Enforcement Advisory Panel (LEAP) rated their
ability to enforce the new MPAs. For example, the ``North Florida'' MPA
is approximately 65 miles offshore to the closest edge and FWC
currently has no available asset or staff funded in the area to support
this mission.
Though I have cited examples specific to Florida waters and
adjacent federal waters, some of the regulations similarly impact other
South Atlantic coastal states. These are clear indications of a need to
increase the JEA funding to address the ever changing demands to
protect our shared living resources. As well, recurring funding is
critical to the state's long term commitment to add positions and
equipment for federal fisheries enforcement.
3. Does the State of Florida have a data management system to track
fisheries law enforcement actions taken at the state level? If
so, do you also track actions taken under Federal statutes
under the Joint Enforcement Agreement?
Yes, FWC has a data management system that captures all citations
and warnings, and can extract the citations and warnings that are
written under Federal statutes. This is an in-house system that is
easily modified. In the last year it was modified to better capture
federal fisheries data.
FWC also created a specific database that captures all JEA related
hours, vessels encountered, boat captains, type of patrols, enforcement
actions taken, etc.
4. How much coordination is there between the NOAA Office of Law
Enforcement and the state law enforcement programs?
There is a substantial amount of coordination between NOAA OLE in
the following areas: National Level--JEA meetings, VMS Meetings,
Regular Conference Calls, JEA Advisory Committee; Regional Level--
Southeast Region Meetings with the impacted states in order to discuss
concerns, intelligence, etc. and Regional Leadership meetings between
the states and NOAA staff; State Level--Meetings to discuss the
continuity between state and federal priorities. NOAA agents assist
with overall state level training for recruits and assist regions with
training issues who are affected by law changes or need additional
training concerns met. NOAA agents are invited to many regional and
local meetings.
5. You note that rebuilding trust is the ``most important objective''
with regard to protecting living marine resources. Have you
looked at the items that NOAA has announced in response to the
IG report and do you think these will be satisfactory to
rebuild trust?
I have reviewed NOAA's response to the OIG report (10 items--
February 3, 2010--Memorandum from Under Secretary Lubchenco to NOAA
General Counsel Schiffer). These items are foundational in beginning
the process of rebuilding trust.
The memorandum is thoughtful and strategic. It addresses five
critical issues addressed in the OIG report and establishes immediate
actions to mitigate continued criticism. The final five actions are
planning items for long term solutions. There has since been a detailed
follow up memorandum from NOAA General Counsel Schiffer to Dr.
Lubchenco outlining the schedule of action plans.
The plans outlined recognize the critical need for transparency in
all processes. It is also clear that the plans provide for another
critical component in regaining trust by providing for interaction
within NOAA as well as external stakeholders.
6. You note that the State of Florida calibrates enforcement
priorities with the State's conservation priorities. This seems
to be a fairly common-sense thing to do. Do you have any
insights into why NOAA does not appear to do this as well?
NOAA is a large and diverse agency and most of my interaction has
been with the Office of Law Enforcement (OLE). Therefore, it would be
presumptuous and misleading for me to assume I knew all of the inner
workings and actions within NOAA. I can provide some general thoughts
based on experiences within the Florida Fish & Wildlife Conservation
Commission (FWC).
Ordering priorities is a constant challenge and dynamic. This
moving target can only be kept on the radar screen through frequent
validation from internal and external stakeholders. FWC has attempted
to incorporate law enforcement staff and biological staff both at the
Head Quarters and regional office levels. This provides opportunity to
share and incorporate ideas across organizational lines and develop
relationships. FWC incorporates the respective affected divisions to
attend meetings, discussions and planning events in order to be part of
the decision making process to ensure all aspects of change are
entertained and levied in the best overall interest of our respective
conservation priorities. This supplements the LE mission and assists
with gaining compliance and creating effective regulations. It is
critical to maintain internal connectivity before building external
relationships.
It should be noted that the follow up memorandum from NOAA General
Counsel Schiffer to Dr. Lubchenco outlines a process to develop
priorities.
CLOSING:
Once again, thank you for the opportunity to provide input on this
important issue. I hope you find my comments beneficial to the process.
Compliance with federal fishery regulations is important to state
fisheries and harvesters. The state/federal partnership for enforcement
of fishery regulations is an integral component in gaining compliance
with these regulations and therefore critical to the fisheries. The
fisheries are clearly shared marine resources. As a representative from
an active state partner and a member of several committees, which
include other state representatives, I can say that the states would
like to be a part of the solution and offer any assistance we may be
able to provide.
______
[The letter from the Gulf States Marine Fisheries Commission
follows:]
March 29, 2010
The Honorable Gary Locke
United States Secretary of Commerce
1401 Constitution Avenue, NW
Washington, D.C. 20230
Dear Mr. Secretary:
I am the Executive Director of the Gulf States Marine Fisheries
Commission (Commission) and I am writing on behalf of the Commission
and our five partner states, to support the continuation of the
authorization and appropriations, specifically for the NOAA Cooperative
Enforcement Initiative for Joint Enforcement Agreements (JEAs) between
NOAA's Office of Law Enforcement (OLE) and the Gulf States.
All five of the Gulf of Mexico state marine agencies participate in
the JEA program which serves as the mechanism to provide the region
with funding for federal fishery enforcement efforts. The JEAs are one
of the most successful partnership programs currently in existence
between NMFS and state agencies, providing an 'operations plan' that is
cooperatively created with each state's conservation enforcement agency
and NOAA OLE. The JEAs have led to significant progress in creating
uniform enforcement databases, identifying regional and local fishery
enforcement priorities, and extending coordination to other areas, such
as investigations.
The Commission has an active Law Enforcement Committee which plays
an integral part in addressing our regional objectives. The five Gulf
States, NOAA OLE, and the U.S. Coast Guard are represented on the
committee, and representatives from NOAA General Counsel and the U.S.
Fish and Wildlife Service also contribute on a regular basis. The funds
provided for cooperative law enforcement agreements have, and will,
improve efforts to protect, conserve, and manage our living marine
resources.
The recent report from the Office of Inspector General (OIG) of the
U.S. Department of Commerce regarding NOAA Fisheries Enforcement
Programs and Operations (Final' Report No. OIG-19887) highlights a
number of problems and perceived problems internal to NOAA OLE,
specifically in the Northeast. That report only provides a brief
mention of the importance the JEAs play in the ability for NOAA OLE to
conduct its investigations in that region and across the nation.
``One effect of OLE's current workforce composition, according
to individuals from the industry and OLE with whom we spoke, is
that its criminal investigators do not spend significant time
on the docks, with dealers, or in fish houses, relying instead
largely on officers from Joint Enforcement Agreement 15
agencies, thereby reducing OLE's overall visibility and routine
interaction with the regulated industry. This can contribute to
misunderstanding and increased tension within the current
enforcement climate.'' Final Report No. OIG-19887, Page 18.
Taken on the surface, the OIG report suggests a NOAA OLE bias
toward criminal and high dollars infractions over uniformed agent and
misdemeanor cases which are being handled by the states. When viewed in
the context of the JEAs, there is a logical division of effort between
the large federal cases, characterized by the OIG, and the smaller
cases handled by the JEA partners. It is clear that the OIG report did
not fully integrate the JEA program advantages and contributions within
the federal program.
In the recent House of Representatives Committee on Natural
Resources oversight hearing on ``Setting the Bar for Accountability:
Improving NOAA Fisheries Law Enforcement Programs and Operations'',
Lieutenant Colonel Bruce Buckson (Deputy Director of the Division of
Law Enforcement for the Florida Fish & Wildlife Conservation
Commission) testified to the value of the JEAs in federal enforcement.
He suggested that:
``the state relationship with NOAA OLE is analogous to a local
Police Department's uniformed Patrol Officers and Detective
squad. The Patrol Officers are the visible first responders to
accidents, crimes and calls for service. The Detective Squad
handles in depth investigations, covert operations and are
normally less visible to the public. Conceptually in a [JEA]
with NOAA OLE, the state officers provide the Patrol function
and NOAA OLE provides the Detective function. Obviously there
are necessary deviations from this concept with regard to
specific cases. Quite often egregious violations impacting
state resources become joint investigations. However, the JEA
concept strongly encourages the less egregious fishery
violations be handled as a state violation when possible.''
February 26, 2010
The Commission fully supports efforts to increase funding of the
JEAs to adequately provide resources which the states' enforcement
agencies expend toward fulfilling federal initiatives. In addition, it
has been brought to our attention that cost of operating the JEAs at
the state level has increased since its creation in 2001 and funding,
like many programs, has not kept up with the current U.S. and world
economy. Any program that remains relatively level funded for more than
a couple years falls behind quickly. In the case of the JEAs, the
current funding in 2009 dollars should be around $18.2M just to remain
equal. The current funding, in 2009 dollars, is only worth $12.4M or
has eroded by roughly 17% due to inflation. We would like to formally
request additional funds be provided to the JEA program, increasing it
from $15 million to $30 million nationally. We all understand the hard
times our current market economy is facing, but the work remains to be
done in both homeland security and marine fisheries. The JEA program is
being asked to complete more work at higher operating costs with less
resources.
Thank you in advance for your consideration and if you have any
questions or would like additional information, please do not hesitate
to contact me.
Larry E. Simpson
Executive Director
Gulf States Marine Fisheries Commission
cc: Dr. Jane Lubchenco, NOAA Administrator
Dr. Eric Schwaab, NOAA Assistant Administrator for Fisheries
Chief Dale Jones, OLE
Gulf Congressional Delegation
Dr. Roy Crabtree
Dr. Bonnie Ponwith
C & P et al.
LEC/LEAP
______
Ms. Bordallo. You are welcome, Colonel Buckson, for your
input and testimony, and we will have questions for you later.
Now I would like to recognize Mr. Walsh. It is a pleasure to
welcome you, and you can begin your testimony.
STATEMENT OF JAMES P. WALSH, PARTNER,
DAVIS WRIGHT TREMAINE LLP
Mr. Walsh. Thank you, Madame Chair. It is a pleasure to be
back before you again. As indicated in my testimony, I have a
somewhat unique experience since I helped draft the Magnuson
Act, and probably am to blame for the enforcement provisions
which were borrowed mostly from other statutes, and probably
were not as complete as should have been prepared at the time.
But we had other things on our mind.
In addition, I was the deputy administrator of NOAA, and I
was responsible for overseeing the General Counsel's Office and
for enforcement cases. In private practice, I am a litigator, a
trial lawyer, and I represent companies that have been charged
both with civil penalties and with civil forfeitures. And in my
case that I mentioned in my testimony in Guam, the captain of
that boat was charged with a crime.
The message that I believe the OIG clearly sent in 1998,
and again most recently, is it can be broken down fairly simply
at the management level. The message is NOAA management be a
client. What does that mean? Well, for lawyers it means that
when you are in law school, you are told a very basic
principle, and I think it is also true in real life, and that
is if you represent yourself, you have a fool for a client. You
should have a client. I can't act without a client. Today, I am
acting without a client; I am acting on my own behalf. If you
do not have somebody in the civil penalty system for you to go
to and say, regional director, or whoever is heading fishery
enforcement in the region, I want to bring a penalty case
against so-and-so, and I want to charge the following penalty.
Should I do so? Now the problem that the OIG has identified
very directly--and Dr. Lubchenco has just admitted--is that the
investigators and the enforcement lawyers operate on their own,
sometimes apparently without a client. They basically have
operated apart from other lawyers in NOAA. They operate apart
from the management.
Again, there are reasons for this. I will personally take
some blame because originally at NOAA we crafted the
delegations of authority. We debated the issue as to whether
the NOAA regional administrator should have some say over the
setting of a penalty. And what happened is that we debated this
issue, and felt that no, that might be too risky, or what might
happen is that fishery enforcement cases would be brought
solely on the basis of politics, or would not be brought solely
on the basis of politics, an issue which everyone should be
familiar with--with regard to the appointment of U.S.
attorneys.
But I think what has happened is it has gone too far now.
The delegations of authority should be looked at in the
continuing review by NOAA because those delegations are
important. All the people who should make the decision as to
whether a case should be brought or not don't ever get
together. So you have a situation where somebody says, well,
you have violated a quota. But you have to have somebody from
the management side that agrees with that.
I think that is one very, very important issue, and I hope
that--and it sounds like they are going to address it. Another
issue which I don't think is going to be solved by what Dr.
Lubchenco has proposed--and that is the whole problem of the
civil penalty schedule. Many of us, including those of us that
worked at NOAA, have been somewhat dismayed by representing
clients in the civil penalty process. The civil penalty lawyers
wrote the rules. They, of course, select the penalties. They
garner the evidence. NOAA hires the ALJs, although there are
Coast Guard ALJs, and they are considered independent. Then, of
course, they have almost exclusive authority to settle.
So when you go before a civil penalty proceeding, it is not
like going into Federal District Court. You basically have a
choice, pay the penalty or try the case. If I go to Federal
District Court, my case will go before one or two or even three
dispute settlers to try to get it resolved before there is a
trial, whereas the fisherman is offered a choice: pay the
penalty or settle it, or suffer the consequences of going to
trial. A trial is expensive. Most people settle and pay. I
think they are going to have to review the civil penalty
proceedings and the procedures, and they are probably going to
have to subject them, I think, to a new rulemaking. And I think
they ought to get experienced legal practitioners, although
they probably won't like that--it makes it a little more
difficult for them--and experienced Federal judges to help them
craft rules that are more fair.
In the end, the biggest issue, of course, is the setting of
the penalty. I can verify what the OIG has found, and a NOAA
attorney does it. But it is even worse than they described it
because what happens is that the penalty is selected; the NOAA
attorney tells the administrative law judge, here is my
penalty, and doesn't say anything more than, here is my
penalty. And then I would move, for example, and say, well, all
right, I want to depose someone or I want evidence for the
basis of that penalty. And the lawyer says, well, I decided it,
and you can't depose me because of the attorney-client
privilege.
There is no question in my mind that that process--and I
have to say, I have come to it recently to look at it more
closely--it is just basically unconstitutional. There is no
authority, in my opinion, for a charged party not to be able to
discover the basis for a penalty. What are the facts? What are
the judgments?
So in the end, I think those things need to be changed, and
they probably can be changed very clear. I also have some
suggestions for, I think--we need to change the law. We need to
look at more robust enforcement provisions, say, in the Clean
Water Act, which have been well thought out.
Let me conclude about whether this is a problem that is
just within NOAA. It is not. These problems find themselves
into Federal District Court either in criminal proceedings or
civil penalty proceedings because, quite frankly, sometimes the
NOAA attorneys--I mean, excuse me, the NOAA criminal
enforcement agents really aren't very well trained, it would
appear. I think that the case I cited in my testimony about Mr.
Hayashi, where the Ninth Circuit Court of Appeals, which is
generally considered fairly liberal, stated that--reversed the
case. A criminal conviction of this man who shot at dolphins in
order to scare them away from his fish. He didn't shoot at
them; he shot away. And he was indicted, indicted basically on
his own cooperative testimony. He was then tried before a
magistrate judge, convicted, appealed to a full judge, an
Article III judge. The conviction was then confirmed. It went
to the Ninth Circuit, and the Ninth Circuit said, more or less
in nice judicial language, how could you guys be so stupid to
have done that.
This is rather stunning. And for Mr. Hayashi, he had a
criminal charge hanging over his head for three years. He had
to defend it. He had to use his own resources. You wonder how--
I mean, the court said that the error came not from a
misunderstanding of obscure interpretative gloss on the
statute, but from a basic misunderstanding of clear statutory
and regulatory commands. And the court is saying, why did you
do this?
In my case in Guam, even though we settled fairly--and I
know that my client, the Marshall Islands Fishing Company, was
very happy with the settlement, and we were appearing before a
fine judge in Guam. They arrested the vessel near Baker and
Howland Island. It was a long way from Guam a few days. They
arrested the vessel. Of course, at that point, the Coast Guard
is escorting the vessel back to Guam, which takes seven days.
And a NOAA enforcement agent comes on board the vessel and
starts interrogating the captain.
Now the question came up with Mr. Zinser with regard to
when do you issue a Miranda warning. Well, you don't
necessarily have to issue a Miranda warning, and every criminal
investigator knows this rule, unless the individual is a target
or is put in a situation where he is not free to leave. So in
the case of the Marshall Islands Fishing Company, the captain
was, of course, not free to leave. The Coast Guard was taking
him back to Guam for the vessel to be bonded. And by the way,
he was later charged with a crime.
So I deposed the NMFS investigator, and I said, well, you
know, what was it about the fact that he was on this boat that
led you to believe that you didn't have to give him a Miranda
warning. Why didn't you tell him he had a right to talk to a
lawyer? He wasn't going anywhere. The Coast Guard had arrested
the vessel. And he looked at me with a stunned look on his face
as if he had never been trained as a criminal investigator.
Then the captain--we put up a bond. The boat was released.
And this I think is also the U.S. Attorney at work. And we
brought the captain back after the vessel was released, put up
a bond. He was deposed for the civil forfeiture case. He went
to the airport, and he was arrested. The captain was arrested.
And so, again we scratched our heads and said, ``Well, why did
you arrest the captain?'' And they would say, well, there is
evidence in the file that he didn't stop right away when the
Coast Guard vessel in the middle of the ocean--which, by the
way, was a buoy tender and not a cutter--why he didn't stop
right away. And he, you know, basically was confused. So they
charged him with a crime under the Magnuson Act for failure to
stop, which is a misdemeanor.
We then filed a habeas corpus petition, saying, how could
you possibly do this because, under customary international
law, there are five Law of the Sea Treaty tribunal decisions
stating that, under international law, once a fishing vessel
has been seized in U.S. waters and a bond posted, the crew must
go free. You can't arrest them for this crime.
So they scratched their head, and they admitted maybe they
couldn't, and they let him go. But then they announced they
were going to--and they did--convene a grand jury and indicted
him under the terrorism laws for a felony, for failure to stop.
And that warrant for his arrest is still outstanding. And you
have to ask yourself, is there anybody who can sit down with
these cases and give them a real world vetting to say, do we
really have to do this. Do we really have to go this far? And
in some cases, you will. But in those cases, like Mr.
Hayashi's, you should never have gone that far.
And the new General Counsel at NOAA is a very highly
skilled Justice Department attorney, and I am sure she is going
to get on top of these things. But you are going to have to
find a way to get to the individuals who are there now to
change the way they are doing business and their attitude. And
they can do a lot better. I think many of them want to do a lot
better because I don't believe the kind of problems we see in
New England are necessarily in the other parts of the country,
but they crop up now and again. And I tend to have, you know,
the larger cases, some of the more complicated cases, and they
are just as difficult, and they are just as expensive, and I
see the same things that are happening in New England. And I am
glad that you are paying attention to it and that you are
pressing for some resolution. And I thank you for the chance to
testify again.
[The prepared statement of Mr. Walsh follows:]
Statement of James P. Walsh, Partner, Davis Wright Tremaine LLP
Chairwoman Madeleine Bordallo and Members of the Subcommittee:
Thank you for the opportunity to testify this afternoon on the
important questions surrounding enforcement of our nation's marine
resource laws and regulations by the National Oceanic and Atmospheric
Administration (NOAA). My name is James P. Walsh and I am a partner in
the law firm of Davis Wright Tremaine LLP, based in its San Francisco,
California office. I am essentially a litigator, mostly in federal
courts, but I also act as defense counsel in civil penalty proceedings
and in an occasional criminal case. My litigation practice has been
split roughly fifty-fifty between oil spill cases, where our firm
represents those injured by oil contamination, and natural resources
and business matters where we represent, among other clients, many in
the fishing industry, primarily on the West Coast and in the Pacific.
Recently, I defended the Marshall Islands Fishing Company, owned in
part by the Government of the Marshall Islands, in a fishing vessel
civil forfeiture case in Federal District Court in Guam, a case that
was settled just before trial last May. I am also a member of the
firm's Quality Assurance Committee and regularly provide advice to my
colleagues on ethics and competence issues. I am not speaking on behalf
of any client at this hearing today and the views I offer are purely my
own.
Framing the Issues
I believe this is a very opportune moment for Congress to closely
examine federal fishery enforcement practices. Today, I would like to
address three issues with the Subcommittee: (1) the need for reform in
the way NOAA internally manages its fishery enforcement cases; (2) the
need to change in several important respects the manner in which
administrative penalty cases are handled, in particular under the civil
procedure regulations found at 15 C.F.R. Part 904; and (3) possible
amendments to the enforcement provisions of the Magnuson-Stevens Act. I
believe reforms at all three levels are needed to bring about a greater
perception of fairness and balance to the NOAA enforcement process and
to more strongly inculcate due process principles in the enforcement
program at NOAA. Overall, my sense is that the lawyers and
investigators at the agency are dedicated and well-meaning but, because
of lack of management oversight and accountability and an absence of
the strong advocacy that brings balance in our judicial system, the
NOAA enforcement program has developed a kind of ``tunnel-vision''
about what is important and what is fair.
The bottom line is that fishery enforcement will always be
primarily reliant on self-regulation and compliance. Punishing
transgressions will definitely, in the right circumstances, be needed,
and will often be welcomed by others in the same fishery. But heavy-
handedness by enforcement officials can backfire, particularly in many
of our fisheries where the regulations have become so incredibly
complex and economic circumstances so stressful. I strongly believe
that the basic fairness and due process principles I speak about today
are not the domain of any political party or any public or private
interest group, but are recognized and shared by all of us. Moreover,
the enforcement problems at the agency cannot simply be approached as
an academic or ideological issue. Practical solutions can and should be
found.
Concerns about the NOAA enforcement have been brewing for some
time. Many in the fishing industry have long grumbled about fishery
enforcement practices, but most have remained silent and paid their
fines. But, ironically, it was the U.S. Department of Commerce's Office
of Inspector General (OIG) that in September 1998 first identified
serious management problems in the law enforcement program (Audit
Report No. STL-9835-8-0001). The OIG found that leadership from the
National Marine Fisheries Service (NMFS) was urgently needed to provide
the Office of Law Enforcement with more specific policy guidance to
assist it in addressing its goals and objectives and allocating its
resources. NOAA management at the time apparently agreed with this and
other recommendations. As the more recent OIG Report (Review of NOAA
Fisheries Enforcement Programs and Operations; No. OIG-19887; January
2010) indicates, the problems have only gotten worse.
My Background and Experience
Let me provide some further background so that the Subcommittee can
understand my perspective. In 1972, I was hired by Senator Warren G.
Magnuson as staff counsel to Subcommittee on Oceanography of the U.S.
Senate Committee on Commerce, Science and Transportation and later
served as the Committee's General Counsel. I was also one of the
initial staff members of the Senate's National Ocean Policy Study.
Senator Magnuson tasked the staff of the Committee to implement ocean
program recommendations by the 1969 Stratton Commission on Marine
Science, Engineering and Resources. From 1972 until 1977, I was
responsible for staffing the enactment each year of between 10-15 new
laws, or major amendments to existing laws, which, among others,
included the Marine Mammal Protection Act, the Endangered Species Act,
the Coastal Zone Management Act, various fishery laws, vessel and
tanker safety statutes, oil spill liability provisions, U.S. Coast
Guard laws, and other maritime and ocean statutes.
One of those laws I helped draft was the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens Act), the first
comprehensive federal fishery management program which applied out to
the newly expanded coastal jurisdiction of 200 nautical miles. Three
points are important to recall about enactment of that 1976
legislation. First, the federal government at the time had no nation-
wide comprehensive fishery management and conservation program.
Domestic fisheries were almost entirely regulated by individual coastal
states to the three-mile coastal boundary at sea; federal management
was limited to international treaty implementation and enforcement of
the Lacey Act and some other specific but narrow laws. Second,
enactment of the Magnuson-Stevens Act was viewed as a unilateral act
under international law given that the U.N. Law of the Sea Treaty was
still under development. The sponsors of the legislation, however, grew
impatient with the international process and were concerned that any
treaty would come too late to prevent serious overfishing by foreign
fleets operating close off U.S. shores, particularly in New England.
The Magnuson-Stevens Act is basically a conservation measure, but
Congress has always also been concerned about management impacts on
coastal fishing communities. Finally, enactment of the Magnuson-Stevens
Act was the result of cooperative bi-partisan efforts between the House
and the Senate and representatives of both parties. For the most part,
the content of the Magnuson-Stevens Act was sui generis, something
quite different than what had gone before, except perhaps for the
enforcement provisions which were largely borrowed from other statutes.
In 1977, President Jimmy Carter appointed me to be the Deputy
Administrator of NOAA, a position that then required Senate
confirmation. Beginning in 1978, I became responsible for management of
the agency's ocean programs, including early implementation of the
Magnuson-Stevens Act. I also was responsible for agency testimony
before Congress, assisting with the agency's budgets, and hiring and
supervising agency leadership. I served in that position until August
1981. From January to August 1981, I also served as Acting
Administrator of NOAA until Dr. John Byrne, President Reagan's
selection for NOAA Administrator, was confirmed.
Therefore, my perspective on fishery enforcement derives from
experience in each of the federal government's branches: legislative,
executive and, most recently, the judicial.
Back to Basics: Ensuring that the rule of law controls and that
prosecutorial discretion is reasonably exercised
The fishery management enforcement system managed by NOAA sits
within the larger context of relevant constitutional limits on
government and Congressional guidance on how enforcement is to be
conducted. Several first principles must always be kept in mind:
First, the Fifth Amendment to the U.S. Constitution mandates that
federal agencies may not deprive individuals of ``liberty'' or
``property'' interests without providing the charged individual with
procedural due process. Under the Magnuson-Stevens Act, civil penalties
may not be imposed without providing notice and an opportunity for a
fair hearing before a neutral decision-maker. The hearing process must
be structured with due regard for the risk of an erroneous depravation
of such interests.
Second, pursuant to the Administrative Procedure Act's (APA) formal
hearing procedures, which are incorporated into the Magnuson-Stevens
Act, the agency must bear the burden of proof on all matters, including
the penalty to be assessed. The APA also provides the charged party
with the ability to rebut the allegations of the agency, including by
cross-examination of witnesses, which many consider to be the most
important defense right for a charged individual or company.
Third, the due process clause requires that agencies must provide
``fair notice of what conduct is prohibited before a sanction can be
imposed.'' U.S. v. Approximately 64,695 Pounds of Shark Fins, 520 F.3d
976, 980 (9th Cir.). To meet this notice standard, a statute or
regulation must give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited so he or she can act
accordingly. Courts have also said that vagueness in a statute or
regulation can encourage arbitrary and discriminatory enforcement by
failing to provide explicit standards for enforcement officials. This
due process requirement is particularly important with respect to
violations of the Magnuson-Stevens Act, which generally are considered
strict liability offenses where liability attaches without regard to
intent or negligent behavior. And we are all presumed to know the law.
Fourth, the penalty assessed for a particular violation must, under
the Excessive Fines Clause of the Eighth Amendment, bear some
relationship to the gravity of the offense. In 2003, a Federal District
Court in Massachusetts confirmed that this principle applied to
forfeiture under the Magnuson-Stevens Act. Roche v. Evans, 249
F.Supp.2d 47, 59 (D.Mass.2003).
As you can see, these concepts are quite general in nature and
require close attention to ensure compliance in actual application.
While some of the controversy in New England emanates from the dislike
of the entire fishery management system by some fishermen, there is a
legitimate debate, I believe, about whether NOAA's fishery enforcement
program is true to these basic principles.
One of the most important powers in any law enforcement program is
the power of prosecutorial discretion: i.e., the decision to bring, or
not bring, a particular case. This agency power is also implicated in
the OIG's 2010 Report. A good way to highlight the issues associated
with the exercise of prosecutorial discretion is to recount a fishery
enforcement action that found it way to the Ninth Circuit Court of
Appeals from Hawaii, a true horror-story for the fisherman involved.
Mr. Hayashi and his son were fishing from a boat off Hawaii and
porpoises were attempting to seize the fish they caught. To scare them
off, Mr. Hayashi fired two rifle shots behind, but away from, the
porpoises. This conduct was reported to NMFS enforcement agents and Mr.
Hayashi was then charged with a criminal violation of the Marine Mammal
Protection Act (MMPA). The main evidence appears to be statements
cooperatively given by Mr. Hayashi and his son to the NMFS
investigators. Mr. Hayashi was then convicted.
On appeal, the conviction was reversed. In its opinion, the Appeals
Court made the following rather remarkable statements:
``Initially, we note that two substantial errors infected the
proceedings before the magistrate judge and the district court.
First, both parties, the magistrate judge, and the district
court all employed the incorrect regulatory definition of the
charged crime. Second, the district court's affirmance rested,
in part, upon the erroneous belief that negligent acts are
criminally punishable under the MMPA.
These errors affected the two most basic elements of every
criminal proscription--the actus reus, or act itself, and the
mens rea, or mental element required for criminal liability.
The errors resulted not from a misunderstanding of obscure
interpretive gloss, but from a basic misreading of clear
statutory and regulatory commands. Although every lawyer
involved was complicit in these errors, the responsibility for
prosecuting the correct crime lies ultimately with the
government.
We hold that reasonable actions--those not resulting in severe,
sustained disruption of the mammal's normal routine--to deter
porpoises from eating fish or bait off a fishing line are not
rendered criminal by the MMPA or its regulations.''
The case took nearly four years to resolve, left Mr. Hayashi with a
criminal charge hanging over his head for all that time, and required
him to invest his financial resources and his time into fighting a case
that should never have been brought. NOAA should manage its fishery
enforcement to avoid ever imposing this kind of horrible experience on
those who are subject to its regulations.
Possible Reforms
A. NOAA/NMFS Management: Be informed and involved clients
Based on my own experience at NOAA, one of the agency's great
strengths is the cadre of superb scientists who are at the helm
managing its many important public tasks. I have great respect for NOAA
and NMFS managers, both at the top and at the mid-level where much of
the work gets done, and I admire their scientific experience and
capabilities. However, that same strength is a weakness when it comes
to law enforcement. Very few NOAA managers I worked with wanted to be
involved, at all, in enforcement matters, because it was not their
interest and requires a set of skills one does not develop as a
scientist or as a tenured faculty member at a university. Consequently,
top management at NOAA and NMFS do not regularly pay much attention to
the fishery enforcement process, nor is it likely they fully understand
how it should function best. After all, NOAA is not the Department of
Justice.
During the time I was at NOAA, we debated how to deal with the
agency's enforcement responsibilities in the context of formal
delegations of authority. Delegations of authority are important in a
federal agency and documents govern who is authorized to do what.
Currently, nearly all management decisions under fishery management
plans, including those that might be implicated in an enforcement
action (i.e., was the quota actually reached?) are delegated to NMFS
regional administrators. However, the NMFS Office of Law Enforcement,
in the agency organization chart, reports to the NMFS Deputy Assistant
Administrator of Operations, not the regional administrators. Finally,
according to another formal delegation, the powers and authorities of
the Secretary of Commerce to assess penalties is given exclusively to
the Office of General Counsel, which reports directly to the NOAA
Administrator. It is not clear how, if at all, these divergent
delegations allow the proper level of management authority to come
together to make decisions where the authority of each (NMFS regional
administrator, NMFS administrator, NOAA attorneys, and NOAA
administrator) must be brought to bear, which should be at the outset
of the case.
The sum total of these management attitudes and delegations, over
the years, has been to allow those in fishery enforcement, in the
General Counsel's Office and NMFS Office of Law Enforcement, to do
their own thing. In fact, individual lawyers within the Office of
General Counsel appear to be in charge, admittedly with supervision by
an Assistant General Counsel for Enforcement and Litigation, but not by
top NOAA and NMFS management officials who are supposed to be managing
the fisheries. Moreover, lawyers are the sole determinant of the
penalty to be assessed. The discretion given the Secretary of Commerce
in determining a penalty under the Magnuson-Stevens Act is quite broad.
Although enforcement attorneys refer to a published penalty schedule,
the assessed penalty can deviate from those suggested on the schedule
and often do. The penalty schedule has never been subjected to public
notice and comment that I can remember. It has been my experience that
neither senior NOAA nor NMFS management is consulted in a penalty
determination by NOAA enforcement attorneys. The recent OIG Report
confirmed that this is, in fact, the practice and labeled it
``arbitrary.''
A basic legal/ethical issue is created by these enforcement
arrangements: who is the client and are NOAA enforcement lawyers acting
as both lawyer and client? Under all bar association rules, an attorney
has ethical duties to his/her client, for example not to act without a
client's approval, to keep the client fully informed, and to gain
approval of the client for settlement purposes, among other decisions.
There is also a very practical aspect to these duties: the client
serves as a ``check-and-balance'' on the lawyer, and vice versa. Both
have duties and responsibilities to fulfill in our system of justice.
The suggestions of the 1998 OIG Report, in my mind, can be summarized
as follows: NOAA and NMFS management--please act like an involved and
informed client and guide the enforcement activities of the agency and
do not simply leave all major decisions to the lawyers and the
investigators. It has been my experience that, when it comes to
litigation over fishery management plans in federal district court, the
agency and its lawyers function together as attorneys and clients, but
not necessarily in the enforcement realm. I believe that both the
lawyers and agency management will be better off if the enforcement
program operates consistent with the proper attorney-client
relationship.
It may be useful to create an agency Enforcement Committee
including NOAA/NMFS management and its lawyers, either centrally or
regionally, to vet cases before they are filed and to follow them at
key points through the process, either when going to Federal Court or
when starting a proceeding before an Administrative Law Judge.
Requiring the lawyers to explain their cases, and the basis for the
requested penalty, to NOAA/NMFS management and then get client approval
could well generate the kind of ``down-to-earth'' case assessments that
would prevent the problems noted in the OIG's 2010 Report. It might
even prevent cases such as Mr. Hayashi's from ever going to court.
B. Make the Civil Penalty Process More Balanced and Fair
It is a general impression by most that go through the agency's
civil penalty process, as set forth in 50 C.F.R. Part 904, that it is
not fair and is heavily balanced in favor of the agency. Rightly or
wrongly, that is the perception. One reason for this perception may be
the fact that the agency writes the rules, brings the case, hires the
administrative law judges, appeals the decisions to itself, and
prevails more often than not. Most lawyers who practice in this area
generally advise their clients to settle, at the outset of the agency
demanded penalty amount, given the cost of going through the process
and the likelihood of winning. In making this observation, I do not in
any way wish to cast aspersions on those who function under the
established guidelines and regulations. I have settled cases on fair
terms for all parties. But the difficulties in the program are systemic
and require broader attention.
Unlike the rules in federal district court, the agency's procedural
rules were not hammered out through the involvement of those likely to
be affected by its outcome. In my experience, those in the fishing
industry do not plan to violate fishery management laws and
regulations, but allegations of violations do occur, even to the most
conscientious. NOAA's civil penalty rules were not subjected to the
rigorous analysis of seasoned federal court litigators or experienced
judges before they were enacted. Agency lawyers largely wrote them. For
example, in the current civil penalty process, a charged individual is
given a simple choice: pay the penalty assessed by the agency or
request (and suffer the cost of) a formal hearing. In federal court,
the agency allegations could be challenged in a number of ways prior to
trial and there is constant pressure to settle cases without the need
for trial. Independent judges and mediators are available to give the
parties a third-party assessment of each side's case and to urge
settlement. I have never tried a case in federal court without there
being at least one serious settlement session. NOAA lawyers follow the
agency rules and, thereby, get an advantage procedurally, at least in
my opinion, over a charged party, given that settlement is purely at
the discretion of NOAA attorneys and they set the penalties.
The assessment of the penalty under NOAA rules is the most
seriously deficient aspect of the entire procedure. First, the NOAA
lawyer assesses the penalty, more or less on his/her own. That lawyer-
determined penalty amount is then presumed, based on past precedent, to
be properly determined by agency in the proceeding and the charged
party must then rebut the basis for the assessment. But because the
lawyer determined the penalty, he or she cannot also be a witness in
the same case and could refuse to allow any discovery of that
assessment based on the attorney-client privilege. When this conundrum
came on appeal to the NOAA Administrator in 2001, the agency ruled that
the charged party could not depose or seek answers to written questions
from the attorney based on the attorney-client privilege and the
convenience of the agency. In the Matter of AG Fishing Corp., 2001 WL
34683652 (March 17, 2001).
In my view, the presumption that a penalty which has been assessed
is correct under the facts and the law does not comport with statutory
and constitutional due process, and is not authorized by the Magnuson-
Stevens Act and is contrary to the APA (5 U.S.C. Sec. Sec. 554 and
556). Moreover, the ability of a charged party to undertake discovery
of the reasons for the assessed penalty, and to cross examine an agency
witness at a hearing, is uncertain and, therefore, also violates
fundamental principles of due process if not allowed. How else can one
challenge the factual and discretionary bases for the assessment?
These and other problems are endemic to the practices and
procedures under the agency civil penalty regulations. It is time for
the agency to reconsider its rules of procedure in civil penalty cases,
perhaps by appointing a task force to review the regulations that would
include seasoned legal practitioners, agency lawyers, sitting
administrative law judges, and perhaps even retired federal judges.
Unfortunately, I did not see this task on the NOAA Administrator's
February 3, 2010 list of actions to be taken in response to the recent
OIG Report. I do not believe that the actions she has identified in
that Memorandum will solve all the core problems identified in the
OIG's 1998 and 2010 Reports.
C. Amend the Enforcement Provisions of the Magnuson-Stevens Act
Finally, it is time to consider amendments to the enforcement
provisions of the Magnuson-Stevens Act, based on more than the views of
NOAA's enforcement attorneys. One such possible amendment would be make
much more specific the factors to be considered by the Secretary of
Commerce in setting the penalty (16 U.S.C. Sec. 1858(c)). The basis for
a penalty amount must be more transparent and understandable.
Another issue that merits examination is the issue of forfeiture of
vessels. It has been the position of the agency that any vessel is
subject to forfeiture for a violation, at the discretion of the agency.
In my case in Guam, we never resolved the issue of whether the Civil
Asset Forfeiture Reform Act of 2000 (18 U.S.C. Sec. 983) applies to
fishery enforcement actions. That law sought to rein in runaway agency
forfeiture actions that appeared to be based on the need for income
rather than the dispensation of justice. For example, why should a
fishing vessel be forfeited for a single violation which would only be
subject to a $140,000 civil penalty.
Another possible amendment would be to create a new category for
judicial civil penalties, similar to the remedy found in the Clean
Water Act (33 U.S.C. Sec. 1319), for large civil penalty cases, such as
for cases with over $250,000 in assessed penalties. I would also favor
a jury trial in such cases as well. I do not believe that the NOAA
civil penalty rules were ever fashioned for large cases.
Finally, the Committee could consider making the Equal Access to
Justice Act now in the Federal Rules of Civil Procedure available in
civil penalty administrative proceedings.
I am sure others will have ideas for new legislation as well.
Again, thank you for the opportunity to present this testimony
today. I would be happy to try to answer any of the Subcommittee's
questions.
______
Response to questions submitted for the record by James P. Walsh
As requested, I am responding to the Subcommittee's questions
regarding the fishery enforcement programs of the National Oceanic and
Atmospheric Administration (NOAA), the subject of the hearing on March
3, 2010.
Question: How are the penalty schedules set in other agencies? Is
there generally a public notice and comment period?
Although we have not done a complete review, other agencies have
much more extensive enforcement policies than NOAA, which includes
guidance on penalty amounts, and some have used the public notice and
comment process not only to alert the public to agency policies but to
obtain comment on their proposals as well. Of course the most elaborate
process, that includes public notice and comment, is followed by the
United States Sentencing Commission which addresses criminal penalties
in federal court. See 28 U.S.C. Sec. 994(a); U.S. Sentencing
Commission, An Overview of the Federal Sentencing Guidelines (1998).
Some agencies have used formal notice and comment to announce
enforcement policies. Attached as Exhibit 1 is a copy of a recent final
rule issued by the Office of Foreign Assets Control, U.S. Treasury
entitled ``Economic Sanctions Enforcement Guidelines'' (74 Fed. Reg.
57593-608; Nov. 9, 2009). Other agencies, such as the Environmental
Protection Agency (EPA) and the U.S. Coast Guard have adopted extensive
policies that guide agency penalty assessment procedures. I do not
believe they were subjected to notice and comment. Exhibit 2 (EPA's
Policies) and Exhibit 3 (the Coast Guard's Policies). In contrast,
NOAA's enforcement guidance and policies are much more limited and the
agency has given almost total discretion to its enforcement attorneys
in the setting of penalty amounts.
Question: You note that there was an Inspector General report issued
in 1998 that also recommended changes in the law enforcement
program. Why do you think the agency has not followed the
recommendations of the report?
The top management of NOAA, including the Administrator and the
General Counsel, simply did not focus management attention on the
issues of enforcement, leaving decisions on the enforcement program to
managers lower in the agency. With no management guidance, the program
was left to continue as before. Clearly, Dr. Lubchenco has asserted
management responsibility and is taking a fresh look at the program,
which is long overdue.
Question: You note that you think the ``penalty assessed for a
particular violation...must bear some relations to the gravity
of the offense.'' Do you believe that NOAA law enforcement
should have a data system that tracks repeat offenders?
The requirement that the penalty must bear some relationship to the
gravity of the offense is a constitutional requirement under the
Excessive Fines Clause of the Eighth Amendment to the U.S.
Constitution. Therefore, the agency must document how it reached the
penalty amount in a particular case and provide a rational basis for
its decision. NOAA already has a data system for tracking repeat
offenders. Every civil penalty case that is resolved is in a database
and is used each time the same person is charged with a new offense.
Question: Do you think that the fisheries general counsel staff should
report to the Assistant Administrator for Fisheries rather than
the Under Secretary? If so, why would this make sense and why
do you think it has not been done?
I do not believe a change in reporting is required. What is
required is a civil penalty charging and assessment process that brings
the various offices together for a consensus before a case is charged.
Note in the EPA and Coast Guard documents that the program and regional
offices of those agencies are integrally involved in the decisions to
bring a case and what amount of penalty is appropriate. NOAA allows its
fishery enforcement attorneys to make these important decisions on
their own.
As you know, NOAA has issued a proposed rule that would eliminate
the presumption that a penalty amount assessed in a Notice of Violation
and Assessment is correct. See 75 Fed. Reg. 13050-51; March 18, 2010.
Further steps were announced in a Memorandum from the Administrator
dated March 18, 2010. We hope the Subcommittee will continue to
exercise its oversight as NOAA moves forward with improvements in its
fishery enforcement programs.
If I can be of further assistance, please let me know.
Attachments
______
Ms. Bordallo. Thank you. Thank you very much, Attorney
Walsh. I am sure you have many interesting stories to tell, and
I let you run overtime because this was my region you were
talking about, and very interested to hear about it. And you
did come up with some of your ideas, which will be solutions to
some of our problems, hopefully, in the future.
I have some questions, just a couple of questions for each
of you. Lieutenant Colonel Buckson, do you think it would be
helpful if NOAA OLE agents were more visible?
Mr. Buckson. One of the--I will answer your question. But--
--
Ms. Bordallo. Will it be yes or no or----
Mr. Buckson. Yes is probably the short answer. One of the
challenges for conservation law enforcement folks is being able
to participate as law enforcement folks unlike a normal PD or
someone from the sheriff's office. We are confronting people
with weapons on a daily basis. When we are in the woods, we run
across people with guns all the time. A city police department
would frantically deal with that situation in a much different
way than we do. We have to have the ability to be able to
communicate with our stakeholders, those folks that are using
the resources, in being able to get a good grip on exactly when
it is time to use the law enforcement parts of your career and
your training. And the biggest part of that is done with
interaction with those stakeholders.
Ms. Bordallo. So more visible. Given your experience with
the law enforcement committee for the Atlantic States Marine
Fisheries Commission, how can law enforcement personnel be
better made a part of the fishery management process, in your
opinion?
Mr. Buckson. In my written testimony, I discussed that just
a little bit. And the Atlantic States Marine Fisheries
Commission is one of the Commissions--actually, all of them
have really pushed hard to get the law enforcement committees
involved in the process from the very beginning. And when I say
involved in the process, I am talking about the management
process. When they are developing regulations, historically
what was found--and I believe we are getting better, but yet
still not there--is regulation managers would find a situation
that needed to be addressed, and when they determined a way to
address it, whatever the management plan might be, whether it
was a size limit, a bag limit, a season closure, or tow times,
for example, the length of time or period of time that you can
fish, quite often there wasn't the opportunity for law
enforcement to have input in that to give some sort of
indication whether or not it is an enforceable regulation or
not an enforceable regulation.
I think the process is both the councils and the
commissions are beginning to look at that at least a little bit
more. My experience with some of the councils down south is
though we have provided input, we are very clear to explain to
those councils whether or not we have the ability not just to
agree with what the regulation is, but the ability, the
staffing, the assets to enforce those regulations. Sometimes
they still move forward with a different regulation than maybe
what we would have hoped to be able to do.
Ms. Bordallo. How are the priorities for Federal fishery
regulations enforcement established with state partners? Just
give me a brief answer on that.
Mr. Buckson. Yes, ma'am. In the State of Florida, we have
meetings with the regional law enforcement officials with OLE.
The deputy has special agents in charge with upper echelon
staff. We just recently, within the last few months, had a
discussion with them, and we basically discussed exactly what
you said. What are your priorities? What would you like to see
the state enforcement officers focusing their enforcement
efforts on?
I don't have a list of those in front of me now, but we
pass that on to our regional commanders, and that actually
gives both agencies a very high level of comfort in knowing
that we are at least approaching and attempting to enforce
those regulations that are important to both partners, state
and Federal.
Ms. Bordallo. Good. So you do have a set of priorities, and
you discuss it among yourselves. Attorney Walsh, what do you
think of the recommendation of having ombudsmen to act as a
trust intermediary between the fishing industry and NOAA?
Mr. Walsh. I see an ombudsman more on the general policy
side. I see the ombudsman to be somebody you can go to with
general policy considerations. But it seems to me in particular
cases, we need better exercise of prosecutorial discretion. We
need a fair process so we can sort out the good cases from the
bad. And we need penalties that are fair. I don't think an
ombudsman would be good for those particular cases, but it
would be good to get the feedback because, as you know,
sometimes it is not your friends that tell you the truth, it is
your enemies. And sometimes it is good to have a place to go
and complain.
Ms. Bordallo. So the ombudsman----
Mr. Walsh. Might help.
Ms. Bordallo. Might help, I see.
Mr. Walsh. Might help. But I really do think that the
fundamental due process requirements in our constitution need
to be strengthened as they are reflected in the NOAA civil
penalty regulations. That is probably the best thing that can
be done.
Ms. Bordallo. Can you explain how your idea of an agency
enforcement committee could be structured and implemented?
Mr. Walsh. Well, I do know that in other agencies--I have
an associate who worked for the Federal Trade Commission, and
they basically have, you know, sort of the directors of
particular bureaus or branches or offices or managers get
together with their lawyers and decide whether they should go
to court. So what would happen, basically, either through
general policy guidance or some specific cases would actually
go fairly high up in the agency, at least to the regional
administrator of the National Marine Fisheries Service, where
the lawyer would basically say, here is my case, here is what I
would like to do. I think this should be brought, or I think
this should be referred to the U.S. Attorney, or I think this
vessel should be seized. And the client listens to the case, as
happens with my clients on everything I do, and the client
gives feedback and says, OK, that is a good case, let us go
with that. No, I think that case there may be weak.
You know, it is just a system where the lawyers explain
what they want to do to their clients, who then give the kind
of feedback you need from a client.
Ms. Bordallo. Thank you very much, Attorney Walsh. I want
to thank both of you for your thoughtful testimony, and for
taking the time to be here. This has been quite a lengthy
hearing. And I apologize that more Members are not present to
hear what you had to say. But don't take it personally. We have
everything on record. And it is just the way Congress works on
a Wednesday. A Tuesday and a Wednesday and a Thursday. Those
are the three busy days.
Mr. Walsh. Madame Chair, I think this is my 101st or 102nd
time testifying before Congress.
Ms. Bordallo. Well, then you understand perfectly. I want
to thank all of the witnesses for their participation in the
hearing today. And members of this Subcommittee may have some
additional questions for the witnesses, and we will ask you to
respond to these in writing.
In addition, the hearing record will be held open for 10
days for anyone who would like to submit additional information
for the record. And if there is no further business before this
Subcommittee, as Chairwoman, I again thank the members of the
Subcommittee and our witnesses for their participation here
this afternoon. And this Subcommittee now stands adjourned.
[Whereupon, at 4:08 p.m, the Subcommittee was adjourned.]
[Additional material submitted for the record follows:]
[A letter submitted for the record by Patrick Flanigan, Law
Offices of Patrick Flanigan, Swarthmore, Pennsylvania,
follows:]
PATRICK FRANCIS FLANIGAN
Law Office of Patrick Flanigan
P.O. Box 42, Swarthmore, PA 19081-0042
Tel: (484) 904-7795
Email: [email protected]
Admitted in Pennsylvania and New Jersey
Websites:
www.pfemployment.com
www.pfmaritime.com
_______________________________________________________________________
March 11, 2010
VIA FACSIMILE
Mrs. Madeleine Z. Bordallo, Guam, Chairwoman
Subcommittee on Insular Affairs, Oceans and Wildlife
1337 Longworth House Office Building (Insular Affairs)
Washington, D.C. 20515
Re: Setting the Bar for Accountability: Improving NOAA Fisheries Law
Enforcement Programs and Operations: March 3, 2010
SUPPLEMENTAL COMMENTS
Dear Madam Chairwoman Bordallo:
This correspondence is to supplement my prior comments of February
28, 2010.
a. Ombudsman: Not useful to address the enforcement matters raised
in the Review of NOAA Fisheries Enforcement Programs and Operations
(Final Report No. OIG-19887 January 2010). But such a program is long
overdue and very necessary for dockside education and outreach purposes
to the regulated industry. There are frequent complaints by fishermen
stating that they telephone the NMFS office in Gloucester, MA and get
different responses concerning regulatory questions or even refusal to
answer a question for ``legal'' reasons.
b. As an attorney practicing in the area of NOAA enforcement I have
encountered numerous due process issues, some of which I shared with
the OIG during their investigation. One example I did not share with
the OIG is a case where the NOAA attorney assessed a civil fine of
$1.24 million dollars and life-time removal of the fishermen from the
industry. This is a civil case in which the NOAA attorney repeatedly
stated to me that he had a personal dislike for the fisherman and
wanted the captain of the vessel to ``change'' his testimony such that
it would be more harmful against the vessel owner. During the civil
proceedings, I motioned to compel the deposition of the NOAA attorney
to query whether the attorney has compiled with the (NOAA/OLE) Penalty
Schedule guidelines, which set forth a balancing of numerous factors
under ``Aggravating/Mitigating Circumstances'' in assessing the NOVA
and NOPS. The ALJ denied the motion and further denied cross-examining
the NOAA attorney during the hearing. While I understand the privileges
raised by the NOAA attorney, the system is perverse. The NOAA attorney
has sole discretion to evaluate the case, controls the record and what
is produced, determines fines and penalties, has exclusive settlement
authority and then goes before an ALJ as the opposing party--yet cannot
be cross-examined. As I previously stated, the OIG's findings are not
surprising to the regulated industry because NOAA attorneys have long
been acting as the enforcer, the judge and the jury.
c. There are many other due process concerns that occur at various
stages of 15 C.F.R. Sec. 904 et seq. This correspondence is a specific
request that there be congressional inquiry into these civil procedures
with appropriate rulemaking to address the concerns.
Thank you for your consideration of this important matter.
Respectfully submitted,
PATRICK FLANIGAN