On September 23, 2010, U.S. Commerce Secretary Locke announced sweeping reforms to increase accountability and transparency and strengthen the public’s trust in NOAA’s Office of Law Enforcement and the General Counsel for Enforcement and Litigation. Locke, invoking his authority under the Magnuson-Stevens Act, announced he will appoint the Honorable Charles B. Swartwood, III (Ret.) to serve as Special Master to review enforcement cases the Commerce Department’s Inspector General identified in its most recent report as problematic, some dating as far back as 2001. Locke will also ask the Special Master to review the complaints that the IG received that were not discussed in the September Report to see if review of those complaints is also warranted. Judge Swartwood will make recommendations to Locke on whether to take action to modify or remit the penalties.
Judge Swartwood formerly served as Chief Magistrate Judge of the U.S. District Court, District of Massachusetts and currently serves as the Chairman of the Massachusetts State Ethics Commission.
In addition, Locke announced significant restrictions in the use of the Asset Forfeiture Fund (AFF) to prevent abuse and increase transparency. The new AFF policy goes into effect immediately and prohibits 50 percent of the Fund’s historical uses, including the purchase of vehicles and vessels; paying for travel that is not related to investigations, proceedings or training; or paying for training unrelated to an integral part of an employee’s job.
“The problems identified by the Inspector General are unacceptable, were allowed to persist for too long and will end on my watch,” Locke said. “We are taking the steps needed to make fisheries enforcement accountable and transparent.
“I am committed to helping Dr. Lubchenco wipe the slate clean. As a former prosecutor, I expect law enforcement officers to uphold high standards and maintain the public’s trust. We cannot meet our nation’s economic and environmental needs without a strong, trusted, enforcement program to ensure sustainable fisheries, vibrant coastal communities and stable economies.
“Proceeds of fines and penalties from fishing violations must never be perceived as being an expense account for law enforcement,” Locke said.
Locke will travel to New England on Monday to meet with fishermen and elected officials to discuss the review of enforcement cases and changes he made to the Asset Forfeiture Fund.
NOAA already has taken other specific, concrete measures regarding the Asset Forfeiture Fund, including shifting oversight of the fund from NOAA’s Fisheries Service to the NOAA comptroller in February, and requiring justification and approval from the NOAA comptroller for any expenditure of more than $1,000 from the fund. The reforms of the Asset Forfeiture Fund ordered by Locke go farther than and in some cases supercede previous restrictions.
Under provisions of the Magnuson-Stevens Fishery Conservation and Management Act, NOAA has authority to retain proceeds from the civil penalties imposed and collected by the agency, as well as the proceeds from the sale of seized fish and vessels, to pay for “expenses directly related to investigations and civil or criminal enforcement proceedings.” The Asset Forfeiture Fund is mostly made up of proceeds from Magnuson-Stevens enforcement actions, as well as proceeds from the Lacey Act and Endangered Species Act, which provide similar authorities.
Today’s announcement is one crucial step to improve the management, accountability, and transparency of the fund. In addition to the travel and training restrictions, other prohibited uses in the policy are:
- Funding for any NOAA employee labor, benefits or awards;
- Funding for any vehicle or vessel purchases or leases, or associated equipment, upgrades, modification or maintenance of current vehicles or vessels;
- Funding for the purchase of any equipment that is not directly related to a specific investigation or enforcement proceedings.
The new policy also includes a number of authorized uses as well as a new section aimed at improving and expanding NOAA’s compliance assistance, collaboration and outreach activities. Activities by the Department of Commerce will include:
- Expanding the use of regional enforcement workshops and training sessions to bring together and educate stakeholders on regulations and other requirements;
- Educating and involving fishermen in the development of potential solutions to regional and national enforcement issues;
- Improving communications with regulated communities and the general public on enforcement issues through improved websites, easy-to-understand compliance guides and timely electronic or other notifications of changes in regulations.
In addition, the Department will be soliciting stakeholder input on compliance assistance programs that can be paid for out of the Asset Forfeiture Fund.
Locke also announced that NOAA will hire eight new enforcement officers to increase NOAA’s ability to assist fishermen on the docks on compliance with laws and to reduce enforcement actions and prosecutions. The Department will also initiate a compliance pilot program in New England, including hiring a compliance assistance liaison and a communications person to enhance outreach to the fishing industry.
In addition to the new policy, NOAA has also systematically addressed the IG’s recommendations from earlier reports, including:
- Transferring oversight of the Asset Forfeiture Fund, which holds fines imposed by NOAA, from NOAA Fisheries to the NOAA Comptroller.
- Requiring justification and approval from the NOAA comptroller for any expenditure from the Asset Forfeiture Fund over $1,000.
- Reassigning Alan Risenhoover, director of NOAA’s Office of Sustainable Fisheries, to serve as acting director of NOAA’s Office of Law Enforcement.
- Hiring Benjamin Friedman as the new Assistant General Counsel for Enforcement and Litigation.
- Freezing the hiring of criminal investigators until a work force analysis is completed to determine the appropriate mix of criminal investigators and civil enforcement officers.
- Implementing a new rule to place the burden of justifying a particular civil penalty or permit sanction on NOAA rather than the respondent in cases before administrative law judges.
- Developing a process to set enforcement priorities at the national and regional level.
- Requiring high level legal review of all charging and settlement decisions.
- Providing enforcement charging information to the public.
NOAA continues to work towards other improvements, including:
- Developing a new penalty policy that will be more specific and have narrower penalty ranges and will be made available for public comment.
- Reviewing and revising NOAA law enforcement and general counsel operations manuals.
- Developing a communications plan to provide greater outreach to fishermen and fishing communities, and other fisheries stakeholders. Locke, NOAA Administrator Jane Lubchenco, and others have met several times with the bipartisan Congressional delegation from New England on fishery-related issues. In making his announcement today, Locke gave Senator John Kerry, Senator Olympia Snowe, Senator Jack Reed, Congressman Barney Frank, Congressman John Tierney and Governor Deval Patrick credit for keeping these issues at the forefront and thanked them for their continued leadership.
The mission of NOAA Office of Law Enforcement and the General Counsel for Enforcement and Litigation is to ensure compliance with the laws and regulations enacted to conserve and protect our nation’s marine resources.
NOAA’s mission is to understand and predict changes in the Earth's environment, from the depths of the ocean to the surface of the sun, and to conserve and manage our coastal and marine resources.